234

C H A P T E IV

SEARCH.SEIZURE AND PERSONAL LIBERTY

IK INDIA

A. INTRODUCTION

If human rights are not embodied in the constitution

and the law, or even if guarantees are not respected,

no citizen would be safe, against tyranny and authoritarianism

of the government. The principles of criminal justice also

envisage the safeguards to person and personal liberty. Prior

to the commencement of the Indian Constitution the

administration of criminal justice was fully governed by

the provisions of the Criminal Procedure Code and the

■Evidence Act. These are mainly concerned not with the

individual's liberty but with security of the state

and public peace. After the independence,Part III and

Part Iv of the Indian Constitution enshrined the long

cherished desires of the people of India in the form of

fundamental rights and directive principles of state policy.

Among others, articles 20,21 and 22 of the Indian constitution

especially incorporate the respect for human personality

and security of life and liberty. Articles 20 provides

immunity against double jeopardy and also protects against

the testimonial compulsions and article 21 declares in

unequivocal terms that * No person shall be deprived of

his life and personal liberty except according to procedure

established by law”. Article 21 has been the subject of

one of most remarkable developments of law in recent times.

The Supreme Court had for a long time taken the view that
 235

this article merely embodies the Diceyian concept of

rule of law viz. that the executive cannot interfere

with the life or personal liberty of a citizen except

by authority of law. Impliedly# interference with

individual liberty under law is alright howsoever

Draconian the law may be. But for the first time in
1
Maneka Gandhi case,the Supreme Court held, that it is not

enough merely that there is a law authorising deprivation

of life or personal liberty but such lav/ should prescribe

a procedure for doing so and such procedure should be

reasonable# fair and just. On this interpretation of

article 21 a person cannot be deprived of his life or

personal liberty except under the authority of law which

prescribes a reasonable#fair and just procedure.

■Article 22 provides protection against arrest and.

detention in certain cases. Clause 1 of that article

provides that arrested person shall be informed about the

grounds of arrest without unnecessary delay and the person

arrested shall have a right to consult and be defended by

a legal practitioner of his choice which further provides

that no arrested person shall be kept in police custody

beyond a period of 24 hours without the authority of a

Magistrate.

One of the basic principles of criminal

jurisprudence which governs our criminal lav/ is that

1 A.I.R. 1978 S.C. 597

 236
/ that/ every,man is supposed to be innocent unless proved
/ ’ ....................................*

gUi 1 ty beyond doubt. 'This cardinal principle finds

place in our criminal justice system is subject to certain

exceptions in case of weaker^section of the society i.e. women

where there are certain presumptions against the theory of

innocence and_the accused have to prove that he is not guilty

as in cases of rape and dowry deaths.

The safeguard contained in clause 3 of Article 20, the

privilege against self-incrimination has been incorporated

in the Code of Criminal Procedure/in section l6i,but it

is not free from controversy as to which of the two interests

shall prevail/the interest of the possibly innocent or

the interest of the society in detecting the crime and

punishing the guilty. To strike a balance between the needs

of law enforcement on the one hand and the protection of

the citisen from the oppression and injustice at the hands

of the law enforcanent machinery on the other hand is the

problem of the State. The emphasis has shifted in balancing

the interests. It enacts a measure of protection against

compelled testimony through police torture/Violence or

over-bearing and intimidatory methods which are

unfortunately still prevalent.

2
The .Supreme Court in Nandi ni S ato a thy v.

exhaustively dealt with the philosophy behind- the privilege

2 A.I.R. 1978 S.C. 10 25

 23V

against self-incrimination.and delineated the contours

of this privilege,the Court pointed out that the

prohibitive sweep of protection against self-

incrirninatipn goes back to the stage of police

interrogation and is.not confined to court proceedings.

The ban on...self-accusation and the right to silence

go beyond the case in question and protect- the accused

in regard to the other offences pending or imminent

which may deter him from voluntary disclosure of

incriminatory matter. The Court held that if there is any

mode of pressure subtle or crude,mental or physical

direct or indirect,but sufficiently substantial applied

by the police in obtaining information from the accused,

strongly suggestive of guilt it becomes compelled

testimony violative of the privilege against

self-incrimination.

This ruling, of the Court in Nandnl Satpnthy.1 s case

has not made any appreciable change in the exercise of

investigatory powers in actual practice. It is only

possible when we have highly sophisticated police force

with special skill and techniques and modern scientific

methods of investigation, that police can detect and

investigate offences without resorting to testimonial

compulsion during custodial interrogation and. comply in

letter and spirit with the ruling of Nandani_ Satpathy. case.

'Administration of criminal justice involves a

number of essential processes which are partly

 238

ministerial and partly judicial in_._ nature. The pre-trial

activity in a criminal proceeding is largely an

administrative process undertaken to initiate judicial

action. The necessary phases in this process are arrest

and detention of the_ suspects, apprehending of the

of fenders# search of person and premises for collecting

material evidence so as to present the offenders in

court of law for the prosecution. These activities are

to be conducted-in accordance with the legal norms and

directions set by law of the land for enforcement of

criminal justice and such_ law must be in consonance with the

constitutional principles.

The powers of search and seizure in the executive

authorities of the state came to be recognised in the

interest of community at large and for the sake of safety

of the society in particular. This power of search vested

in the executive#directly affects the personal liberty and

right to privacy of an individual. The personal liberty

includes the right of privacy#the contours of which still

remain undefined. There is no guaranteed right to privacy

in the Indian- constitution but efforts have been made

to evolve it from out of article 21. On the one hand the

Supreme Court wants to go to the extent of expanding the

scope and ambit of the personal liberty# and on the other in

- 3
Pur an Mai, case the court frowned upon elevating the right

to privacy to the status of fundamental right. The Supreme

Court also thus restricted the right to privacy vis-a-vis

3. A.I.R.1974 S.C.348 Also see Chapter VI infra

 239
search and seizure.

Now the question arises as to whether the search

conducted under the provisions of the criminal law is hit

4
by article 20(3) of the Constitution of India? In M.P.Sharma

case it was held by their Lordships that, having regard to

the historical background regarding Indian criminal

procedural lav; concerning searches,interposition of the

judicial functions while ordering searches and the person

to whom the orders regarding searches are made, such searches

were not tantamount to testimonial compulsion to the accused

person and for that reason there was no invasion of

fundamental right guaranteed by article 20(3) of the

Constitution of India.

In every case of arrest the person arresting shall

communicate to the arrested per son,without delay, the grounds

of his arrest. This is fundamental right of the arrested person

under article 22, it gives him an opportunity to remove any

mi stake,mi s-apprehension or mi s-under standing, if any, in the

mind of the person arresting. It also enables him to apply

for bail, for a writ of habeas cornus or to make other

expeditious arrangement for his defence.

The right of an arrested person to be produced before

a magistrate within 24 hours has been incorporated in the

constitution as one of the fundamental rights under article

22. It is necessary to prevent arrest and detention for the

purpose of extracting confession or as a measure of

4. A.I.R.1954 S.C. 300

compelling people "to render information and to afford an

early recourse to judicial serutiny by a judicial officer

regarding the grounds of arrest,bail _and discharge.

In normal practice there is sometimes violation

of these rights,because cases are not unknown where the

persons are arrested by the .police but no entry of arrest

is made in the daily diary register and it is only when

the police, decides to produce the person arrested before

the magistrate that they make an entry in the'register

according to their convenience. This type of violation of

constitutional or legal right can be easily avoided if

the people are conversant with the rights and there is a

greater awareness and the law and the magistracy is also

keenly sensitive to the rights of the people.

For the purposes of proper investigation,enquiry

or trial,the relevant documents and other material objects

should be available to the lav; enforcing agencies

conducting such proceedings. If any person possessing such

relevant documents or things fails to produce the things

required by the police for investigation purposes,coercive

methods are employed for obtaining these material objects.

The Code of Criminal Procedure,therefore, provides'

initially for summons to produce any documents or things?

but if it is apprehended that this method will not suffice

or the person to whom the summons are issued fails to

produce the documents or things required. The court has

no option but to issue orders to the police for the search

and seizure of such documents and things. If the exigency

 241

of t’:e investigation requires the immediate search of

a place*the police-officer making the investigation is

empowered to search even without obtaining a warrant

5
from a magistrate.

The coercive methods employed by the police for

obtaining evidence by searching the pranises occupied

by a person is'a serious inroad upon the rights of

an individual but such encroachments, will have to be

tolerated in the larger interests of the society. An

endeavour shall be made to strike a balance between

the interests of the individual and those of the

society by providing certain safeguards in favour of

6
the individual. In State _v. Shew an i Singh, it has been

observed,” An Indian citizen's house*it must always be

remembered* it his castle*because next to his personal

freedom, comes the freedom of his house. Just as a citizen

cannot be deprived of his personal liberty except under

authority of 1 aw* simil a.rly, no officer of the State has a

prerogative right to forcibly enter a citizen's house

7
except under the authority of law”. In India the

administration of criminal justice is generally governed

by the Code of Criminal Procedure* 1973,but where a special

statute provides a different prdcedure for investigation,

enquiry or trial of offences enumerated therein,in that

5. S eoti on 165. Code o f' Criminal Procedure, 19 7.3.

6. A.I.R. 1968 Delhi* 208.

7. Ibid at p.211
 242

situation the provisions of the Code of Criminal Procedure

shall not apply. In other words the Code of Criminal Procedure

1973 is a parent statute so its provision of search and

seizure are being discussed below.

B. PROCESS TO COMPEL THE PRODUCTION OF

things

Ip police of ficer or a court may,under certain

circumstances,i ssue a .written order or a summons for the

production of any documents or other things if it is

relevant for the. purposes of any investigation,enquiry,

trial or other proceedings under the Code of Criminal

Procedure. This provision is contained in Section 91

of the Code of Criminal Procedure, 1973 which runs

as under s

(l) Whenever any Court or any officer in

charge of a police station considers that
the production of any document or other thing
is necessary or desirable for the purposes
of any investigation,inquiry,trial or other
proceeding under- this Code by or before such
Court or officer, such Court may issue a summons,
or such officer a written order,to .the person
in whose possession or power, such document or
thing is believed to be,requiring him to attend
and produce it,or to produce it, at the time and
place stated- in the summons or. order.

(2) Any person required under this section merely

to produce a document or other thing shall be
deemed to have complied with the requisition if he
causes such document or thing to be produced
instead of attending personally. to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect ss.123 and 124' of the Indian

Evidence Act, 187 2 (l of 187 2), or the Bankers'
Books Evidence Act 1891 (13 of 1891)? or
(b) to apply to a letter,postcard, telegram or
other document or any parcel or thing in the
custody of the postal or telegraph authority.
 243

1. APPLICABILITY OF SECTION 91 TO THE

ACCUSED)

An order or summons can be issued under section 91 to

any person. Wow a question may arise whether summons or an

order under this section could be issued to an accused person.

The language of the section is general and prim a-facie apt

to include an accused person but there are indications that

the Legislature did not intend to include an accused person.

In England,no person can be compelled to produce evidence

against him, and,consequently, no order can be made on him to

8
produce documents or other things. In India,because of the

general words used in section 91 the courts were of the

opinion that a magistrate can issue summons against an accused

requiring him to produce the documents or things in his

9
possession or power. A different view was also taken in some
10
cases and it was held that the provisions of the section
r\
m does not apply in case of an accused person. Since the

commencement of the. Constitution,however,the position has

considerably changed. Article 20(3) of the Constitution

provides that no person accused of any offence shall be

compelled to be a witness against himself. The matter came up

for consideration before the Supreme Court in M.P. Shazma v.

"11
S at-.l sh Chandra, thou ah indirectly.. The question involved in

that case related to the power of the Court to direct search

8.
p.49 2 para 831 -
9. Mohamma _Eak,ari.ah...&-C.,a_v. &hm.ad,liakamraad—L..L.R.5
OOd 109(122)
10 BanslLal v.8 Cr.L.J.224

I.L.R.38 Cod. 304

A. I. R. 1954 S.C.300
 244

of the house of the accused per son under Section 96 (i)

of the repealed Code (corsespondent to section 93 (l) of

present Code).. In considering that question/the Court

assumed that , this section i.e. section 91 ( section 94

of the old Code) is applicable to the accused and that

there is an elenent of compulsion implicit in the process

contemplated by thi s section because/in any case,

non-compliance results in the unpleasant consequence of

invasion of one’s prsnises and rummaging of one's private papei

by the minions of law under a, search-warrant# and that it was

not possible to read thi s section, and section 93 (l) as

importing any statutory recognition of a theory that

search and seizure of documents is compelled production

12
thereof. A power of search and seizure is in any system of

jurisprudence an overriding necessity regulated by law.

It was/therefore, held that the constitutional protection

under Article 20(3) would not be defeated bv the

13
statutory provisions for searches.

In coming to the decision as aforesaid#the Court

also considered the provision fora notice to an accused

to produce a document under this section and there is

clear indication of the view that it would amount to

compelled testimony which is prohibited under Article 20(3)

of the Constitution.

12. Ibid at p.304

13 . Ibid at p. 30.6
 245
In this view, ther efore, a notice to the accused

under this section to produce.a document#even if the

section is applicable to the case of an accused person#

would be hit by the provisions of Article ,20(3) of the

14
Constitution and illegal. The Calcutta High Court in

a later case# also took the view after the decision that the

reasoning of the earlier decisions of that court would no

longer be valid since the Supreme Court has decided that the

production of a document preliminary to a trial ( not to

speak of compelling an accused to produce a document at the

trial) is in the nature of testimonial compulsion which

offends against the provisions of Article 20(3) of the

15
Constitution.

The Orissa High Court#however# took the view that the

Supreme Court decision applied only to private documents# and

not to 'public documents' in the possession of the accused#

as thev are outside the immunity conferred by Article 20(3)

.... 17
of the Constitution.

Article 20(3) of the Constitution again came up

for consideration before the Supreme Court in State of

18
Bgnhiv; v. Kathj.Kalu Pahad. It was pointed out that ' to be

a witness' is not equivalent to 'furnishing evidence* in

its widest significance so as to include also production of

documents or giving of materials which-may be relevant at a

14
I.R. 1956 Madras 165

16. M.P.■Sharnia v. Ihandra.AIR 1954 S.C.300

1$. Mad an Lai v.St R.1958 Orissa atpp.2#4
18. A.I.R.1961 S.C. 1808
 248

trial to determine the guilt or innocence of the accused,

19
that the observations in K.P. Shernn v. Sat 1 sh Chandra that

section 139 of the Evidence .Act has no bearing on the

connotation of the word 'witness' is not entirely well

founded in law, and that 1 to be a witness' means imparting

knowledge in respect of relevant facts by an oral statement

or a statement in writing made or given in Court or otherwise.

"To be a witness' bears a wider meaning than its ordinary

grammatical sense, and means bearing testimony in court

or out of court by a person accused of an of fence,or ally

20
or. in writing. It is thus not enough that he should become

accused any time after the statement has been made. For

invoking the constitutional right against testimonial

compulsion guaranteed under this clause, it must appear that

a formal accusation has been made against the party pleading

the guarantee, and that it relates to the commission of an

offence which in the normal course may result in

21
pr o s ecution.The nature of the accusation and its probable
).. ......... 22
sequal segue/ or consauence are regarded as important.

To understand the full significance of the decision

23
in Kathi Kalu Cghad* s case,it will be necessary to refer to

the judgment in some further detail. It was observed!

19. A.I.R. 19% S.C. 4388

20. State .of Bombay v. Kathi- Kalu Qghad A.I.R. I96l S.C.
18,08. _

21. Raja..Iteravan..Lai Bansl Lai ,y. M^,.e,sk.,_Pjx£r_Qjs„Mist£y

A.I.R.196I S.C.29 at p.38

2 2. Ibi d at p.39.

23. State of Bombay v.Kathi Kalu Oghad_ A.I.R. 1961 S.C. 1808.
 24 7
The accused may have documentary evidence in his
possession which may throw some light on the
controversy. If it is a document which is not his
statement^conveying his personal knowledge
relating to the charge against him#he may be
called upon by the Court to produce that
document in accordance with the provisions of
Section 139 of the Evidence Act#which#in terms
provides that a person may be summoned to
produce a document in his possession or power
and that he does not become a witness by the
mere fact that he has produced it? and,therefore#
he cannot be cross-examined*.# In our opinion#
■therefore# the observations of this Court in
Sharma* s case that section 139 of the Mdence
Act has no bearing on the connotation of the
wordBwitness' is not entirely well founded in
law. It is well established that clause (3) of
Article 20 is directed against self-incrimination
by...an accused person# self-incrimination must
mean conveying information based upon the
personal knowledge of the person giving the
information and cannot include merely the
mechanical process of producing documents in
Court which may throw a light on' any of the
points in controver sy#but which do not contain
any statement of the accused based on his
per sonal knowledge.. For example#the accused
person may.be in possession of a document which
is in his writing or which contains his
signature or his"thumb-impression. The
production of such a document#with a view to
comparison of the writing or the signature or
the impression# is not the statement of an
accused per son#which can be said to be of the
nature of a ’personal testimony*. 24

The position is# therefore# this*

Whether or not the order requiring the production of a

document by an accused person is hit by the prohibition

contained in Article 20(3) of the Constitution would

depend upon the nature of that document. If the document

is such as is 1 not his statement conveying his personal

knowledge relating to the charge against him’# he may be

24 Ibid at p. 18 14
 248

called upon by theCourt to produce that document. But if

the order relates to a document which contains 1 any

statement of the accused based on his personal knowledge1 *

the order . for its production will attract the

: ' ............................. 25' '
constitutional bar against testimonial compulsion.

Article 20(3) of the Constitution will come into

play only when two facts are established*

(i) the..individual concerned was a person

accused of_ an offence* and

(ii) he was compelled to be a witness, against

\
himself.

If only one of these facts, and not the other is

established* the requirements of Art. 20(3) will not be

26
fulfilled. But to produce a document in a criminal case

in support , of prosecution is a testimonial act under

Art. 20(3) . It vrauld prohibit a suirmons to be issued under

this section against, an accused person reouirincr him to

27
produce documents in support of a prosecution case.

Whether requiring an accused to produce a thing in

his possession will amount to testimonial compulsion, for

this we turn to another case State v.Prabhu Singh in which

the Chairman and Manager of a transport company*who were being

■prosecuted under section 14 of the Employees1 Provident

Funds Act* 1952* were required to produce registers*etc*of

the Company in support of the prosecution case* for which-

there was no other evidence on record*it was held that the

registers would obviously contain certain information based

25 State. v.Prabhu -Singh A.i.R. 1964 Punjab 3 25 at p.3 27

26, Mohammad Bastgir v.St ate of Madras'.AIR i960 3 q
2f Stat.e_-oiLMaha.r,a„sh.tr..a v.' Magpm electric light foowlr
-r 0/1 O -*■*- w—,, ................................................................. ” C**L Co
 249

upon personal knowledge of the respondents,which was to

be used as incriminating evidence against them, and, that,

therefore, the order requiring them to produce the same

28
would be violative of &rt.20(3).

The decision of the Suprene Court in State of Gujarat

■ ■ ■ ................. 29.....................
:yJ3hy.aml_al M.ohanl.al, sets this controversy at rest. The

Supreme Court has held that the word ‘person’ in this section

does not refer to or include an accused person and,

consequently,no process can be issued or direction given to

the accused for production of any document. Reliance has been

placed by the judge for this view on the use of the words

’ to attend and produce' in sub-section(l) of Section 91. It

has been pointed out that the word ' to attend' and then

to 'produce* the documents would be inapt in their application

to an accused person who is already present in Court, or at

the stage of investigation,was under arrest and with the

police.

In a recent decision in V.S.Kuttan Pi 11 ai v.Rama

30
Kri ah an an the Supreme Court took note of the conflict between
31
the observations in M.P.Sharma's case as re-considered in
32 33
Kathl Kaiu Oghad's case, and the one in the case of Shy ami ai.

However,as that case was not directly related to a summons

issued under Section 9l(l),it was not considered necessary

to refer the matter to a larger bench to resolve the conflict.

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 250

2, TAKING OF THUMBMARKB.SIGNATURES OR

HANDWRITING OF AN ACCUSED PERSON

Conflicting views were taken by the different

High Courts as to whether, in view of the provisions of

Article 20 (3) of the Constitution/an accused can be asked

to give his hand/root or thumb mark or specimen of his

writing or signatures and the like, 'While in some cases/

it has been held that a direction requiring an accused

person to furnish such material to the prosecution offended

34
aaainst Article 20(3) of the Constitution/ a different view
35
was taken In other cases and it has been held that it did not*

In a third set of cases it has been held that mere asking

for such material did not offend against the aforesaid

constitutional provi sion, but it would if the accused is

................ 36
compelled to give his thumb-impression or specimen writing#etc.

The controversv has#however,been set at rest by the

37
Supreme Court decision in State, of Bombay v. Kathi Kalu. Oghad

in which it has been held that requiring the accused person

to furnish thumb impressions or impressions of foot or palm

or fingers or specimen writings or showing parts of the body

by way of identification are not included in the expression

Mto be a witness® and would not be violative of Article 20 (3)

of the Constitution. It has been observed^

To be a witness' may be equivalent to 'furnishing

evidence1 in the sense of making oral or written

1/1 Balrai Bhalla v. Ramesh Chandra Ni ft am# A. I. R. i960 All.

157 at p.158 : *

35. Sailrnidra Na.ik Sinh.a v.State A.X.R. 1955 Cal. 247 at p. 24S

36 . Badril.al v. Sit ate A. I,R. I960 Raj. 184.

37. A.I.R.1961 S.C. 1808 at pp. 1814/1817

 251

statement,but not in the larger sense of the

expression so as to include giving of thumb
impression or impression of palm or foot or
finger or specimen writing or exposing a part
of the body by an accused person for purpose
of identification. 'Furnishing evidence* in the
latter sense could not'have been within the
contemplation of the Constitution makers for
the simple reason that— though they may have
intended to protect an accused person from the
hazards of self-incrimination,In the light of
the English Law on the subject—they could not
have intended to put obstacles in the way of
efficient and effective investigation into
crime and of bringing criminals to justice.

But it has been held that this section does not

empower the magistrate to summon an accused person to

furnish his specimen signatures or thumb marks while

the case is still under investigation. The word ’thing1

in the section 91 Cr.P.C. refers to a physical object or

38
material and not to any abstract thing.

3. 'DOCUMENT CM THINGS WHICH MAY BE

DIRECTED TO BS PRODUCED.

For definition of •document* we shall see Section 3

of the Evidence Act, 187 2, and Section 9(l6) of the General

Clauses Act, 1897. A "document or thing" does not include

39
"women".

The language of section 91 Cr.P.C. is very wide.

If it were to be taken quite literally, it might appear

that anything,whatever it may be whether tangible or

movable which is capable of being produced, might be

ordered to be produced if the court chose to consider

its production necessary or desirable for the purposes of

38. T. Subhi ah v. S.K.B.Rama Swamy Nadar A. J-.R. 1970 Mad.85

39 B1 su Haidar v.The Ehtoeror 11 C.VI.N.836

 252
"4b.... .
any proceeding before it. A magi.strate has the power

of calling upon any per son to produce any 'document*, or

'thing* in that person* s possession or power,which has any

connection with the offence which .happens to be under

investigation or inquiry. Of course, he cannot call for

anything-and everything from anybody and everybody. The

thing called for must have some .relation to, or connection

with,the subject-matter of the investigation or inquiry

or throw some light on the proceeding, or supply some link

in the chain of evidence. It may be that the thing called for

may turn out to be wholly irrelevant to the inquiry? but so

long as it is considered to be necessary or desirable for the

41
purpose of the inquiry,the power is there. The words

'’document or thingw are general and seam to cover any document

the production and inspection of which are""necessary or

42
desira?ole** or gill serve the ends of justice..

An accused was _ charged with criminal breach of trust

with reference to a sum of 8s. 1,77,131-1-2 which was paid to

him in 17 currency notes of ten thousand rupees each and

the remainder in small cash. He admitted the possession of

15 .bf then,but said that he had given 10 out of the 15 tc

third person,his solicitor. The solicitor who claimed

r-------------- — ------------------------—------------------------------- ~ .

a lien^on the 10 notes. The prosecution insisted on the

production of these notes including the five notes and the

proceeds of the other five currency notes in the possession

of the - third person(solicitor),but the magistrate refused

40. In re Lloyds Bank.Ltd A.I.R.1934 Bom.74 at p.76

4l„ Per Ameer All J.,in the'matter of complaint of

fi-iS. The Nizam, 19 Cal .5 2 at p.64.
42 Municipal,.Gamed, ttefi,3liailg V.Mohammad Hayatr 36 P.R 1914
to make an' order to that effect on the ground that he had

no power to compel their production. It was held that

the magistrate was wrong and that he had tower to compel the
'43
production of the notes and of the proceeds®

In another case, an accused stole a blank cheque form,

forged 'the complaint1 s__signature,withdrew a sum of money

and deposited a portion of it in saving bank account with

another bank. .During the course of investigation the

magistrate passed an order under this section calling upon

the bank to produce in court the amount so deposited by

the accused and on the bank failing to do so issued a

search warrant for ^the amount of Rs.4,000. It was held

that the order was illegal. Though the language of Section

91 is very wide,the Court's discretion must be exercised

judicially. In this case neither the accused nor the

comp lain ant could possibly have any right to any particular

sum of money in the bank. The accused had only an actionable

claim against the bank for Es.4,000. The money was not

part of the proceeds of the alleged offence, and had no

connection with the subject-matter at all. Whether the accuse

was convicted or acquitted it had to be .returned to the

44
owner,!, e.,' the bank.
" ....... 45
In & re Lloyds. .Bank Ltd the decision in the matter
46
of the complaint of- H.K. The -NjLzam, was distinguished on the

43 In the matter of the complaint of H.H.The.dfraam 19 Cal

52.
44. In re Lloyds Bank—LjbcL. I.R. 1934 Bom.74

45. Ibid*.

46. Sug.r_.a Note 43

 254

ground that in the latter case the property was held

necessary for evidentiary purposes. The circumstances of

the case were such that the Court could hold and did hold ■

that all the currency, notes were connected, with the subject-

matter of the charge and were part of the proceeds of the

offence.

4. THE MANNER. OF BI2SRCISS OF JUDICIAL

DISCRETION

The discretion conferred on the Court under

sub-section (l) of section 91 of the Cr.P.C. is an

absolute di scretion, the only condition for the same being

that in the opinion of the Court ( and the police officer,

where the power if exercised by him) the production of

document or thing is necessary or desirable for the purpose

of the enquiry, trial or other proceedings, as the case may be.

Seme restrictions are placed on the exercise of this

discretion by sub-section (3) which provides that nothing

in the section shall be deened to affect sections 123 and 124

of the Evidence Act or to apply to a letter,post-card,

telegram or other document or any parcel or thing in the

47
custody of the postal or telegraph authorities.

The power of the Court under sub-section (l) is,

however,not limited by section 12$ of the Evidence Act.

But the discretion under - this section is a judicial

discretion, and it should not, ordinarily be exercised in

such a way as to conflict with the privilege against

47 i .J.e.thabh.al v. §.ta.ta A.I.R. 19^2 Gujrat 290

 43
disclosure conferred by Section 126 of the Evidence Act.

Whether a document should be summoned or not is

essentially in the discretion of the trial court. Except

for very good reasons#the. High Court should not interfere

with the discretion conferred on the trial courts in the

49
matter of summoning documents.

The question whether the production of a particular

document or book is necessary or desirable for the purpose

of any trial is one which must be decided by the magistrate

before he orders the production and in determining that

question he has to exercise his discretion judicially#in the

sense that he must satisfy himself # that the document or the

50
book has a bearing upon and is not irrelevant to the case,

When he has so satisfied himself, his jurisdiction to order

its production comes into play and that carries with it the
51
jurisdiction to allow the prosecution the right of inspection.

Section 91 would apply to all cases, including summons-cases, and

it gives the magistrates discretion about the production of

documents. Where such discretion has been judicially exercised,

52
the High Court will not interfere in revision.

Where an advocate of an accused asked the complainant in

cross-examination, in a defamation case, a question after

48. IM4

49. Assi stant Collector .o_f Q.istems.-Bombay v. -

another A. I.R. 19 70 S.C. 962 at p.967

50. . Bashir Hussain v. State. 67 Bom.L.R. 748

.51. In re Lakhmldas Naranv 5-Bom.L.R. 98O

52. Chhote Mi van v. Ehroeror A.I.R. 1936 Nag. 250

 256
c
looking into his brief and the advocate of the complainant

without even waiting for an answer to the question from the

complainant, got up and made an application for taking

possession of the letter referred to in the question from

the brief of the advocate of the accused and the court

thereupon passed an order requiring the advocate of the

accused to produce the letter. It was held that it was not

for the magistrate in the exercise of his power under

sub-section (l) of section 94 ( of the old Code) to require

the advocate of the accused to produce the letter- on the

entirely erroneous assumption,unfounded on any material that

such letter was in the possession of the advocate of the

accused-for the puroose of contradicting the complainant

and that too before the complainant had answered the question

put to him by the advocate of the accused. The order made by

53
the magi strate wTas, therefor e, obviously illegal.

A person who fails to comply with the summons without

any reasonable excuse will impose himself to the penal

consequences contemplated by -Section 349 of the Code of

Criminal Procedure. Intentional omission to produce a

document as required by this section shall also be

punishable under section 175 of the Indian Penal Code. It is

necessary that before a person is punished for failure to

comply with the means or orders issued in this section, it

will have to be proved that the conditions for issuing a

53. GJt,'Pe.S-al v. State A.I.R. 19^2 Guj . 290 at p.293

 257

summons or orders have been fulfilled and the summons and

orders have been fully served on such a person.

C. PROCEDURE WITH RB3ARD TO LETTERS AND

TELEGRAMS

If any document or thing is in custody of the

postal or telegraph authorities which are exempt from

operation of section 91 of the Code of Criminal Procedure#

these matters are governed by section 9 2 of the Code of

Criminal Procedure which runs as under!

(1) If any document#parcel or thing in the

custody of a postal or telegraph authority is#
in the opinion of the District Magistr ate#Chief
Judicial Magi strate# Court of Session or High Court
wanted for the purpose of any investigation#
inquiry#trial or other proceeding under this
Code# such Magistrate or Court may required the
postal or telegraph authority, as the case may be.
to deliver the document#?steel or thing to such
person as the magistrate or Court directs*

(2) If any such document#parcel or thing is# in

the opinion of any other magi str ate#.whether Executive
or Judicial or of any Commissioner of Police, or
District Superintendent of Police#wanted for any
such purpose he may require the postal or
telegraph authority# as the case may be to cause
search to be made for and to detain such document#
parcel or thing pending the order of a District
Magi strata# Chief Judicial Magistrate or Court
under sub-section (l) .

The authorities mentioned in Section 92#Cr.P.C.#

cannot be directed to produce the document or thing in

court or before the investigating officer. They can only

be directed to -deliver the same to a person nominated by the

54
magistrate or court# or to detain them pending orders.

54 Textiles Traders Syndicate v.State of. U.P. A.1.R.1960

All.405•at p.407
 258

Sections 91 and 9 2 must be read together as they form one

group. It is#therefore, obvious that no order under s.9 2(l)

can be passed in respect of a par cel # document or thing not

in the custody of the postal, or telegraph authorities at

the time of passing of the order but which are expected to be

received in future. It is also significant that before the

District Magistrate passes, n order' under s„92(l) he has to

be satisfied whether the production of the document or thing

is necessary or desirable for the purposes of inquiry#

investigation or any other proceding. Pr.im..a-fecie, there can

be no such, consideration by the District Magistrate in

respect of a document which.is not in existence at the time of

passing of the order and which may ccme into existence

subseouently and may be received by the postal or teleerraph

55 " "
authorities. However# as regards s.92(2)# in the very nature

of things it is not possible to specify the documents#

parcels or things that should be detained by the Postal

and Telegraph Department#becauseumless the investigating

Officer makes some nrima-f.aci.fi examination it is not possible

for him to determine whether any particular document#parcel etc

would be wanted for the purposes of investigation and with

regard to which orders may be obtained under s.92(l).

Therefore#it has been held that an omnibus order by the Distrie

Superintendent of Police under s.9 2(2) directing- the Postal

and Telegraph Department to obtain the entire mail addressed

56.
to a person was not illegal.

55. Ama.r Singh v. State A. I. R. 1965-Raj-. j6j at p. 162.

56. Kail ash v.Superintendent of Post Of fices,Delhi

A.I.R. I960 Punjab- 412.

 259

D. SEARCH WITH A WARRANT

search warrant is a written authority given to a

police officer or other person named in it, issued by a

competent magistrate or court directing the search of any­

place either generally or for specified things or documents

or for persons wrongfully detained. A search is a coercive

method in which the sanctity and privacy of a citizen's home

or premises is invaded. A search and seizure is only a

temporary interference with a right to hold the premises

searched and the articles seized. As we have already

discussed that the search and seizure of documents from the

accused does not amount to infringement of fundamental

57
rights under Article 20(3) of the Constitution. It is,

therefore, necessary that the power to issue search warrant

58
should be exercised with all care and circumspection.

According to the provisions of the Code of Criminal Procedure

1973 search warrants may be issued under sections 93,94,95,

•97 and 98. An analysis of these sections is attempted below*

1. SEARCH WARRANT UNDER SECTION 93 KBf

OF THE CODE OF CRIMINAL PROCEDURE

The power to issue search warrants have been

incorporated in section 93 which runs as under:

93(l) (a) Where any Court has reason to believe

that a person to whom a summons or order
under section 91 or a requisition under
sub-section (l) of section 92 has been, or
might be, addressed,will not or would not
produce the document or thing as required
by such summons or requisition,or (b) where
such ■ document or thing is not known to the

57 M.P.Sharma v. S^ti sh Chandra .A.I.R.T954 S.C.300

58 Kal Inga. ,Tube.s-I±dL. v. D. Suri , A. I .R. 1953 Ori 153 at p.l55
 260

Court- to be in the possession of any per son, or

(c) where the Court considers that the
purposes of any inquiry, tri al or other proceeding
under this Code will be served by a general
search or inspection, it may issue a search warrant?
and the person to whom such warrant is directed,
may search or inspect in accordance therewith and
the provisions hereinafter contained.

(2) The Court may, if it thinks fit, specify

in the.warrant the particular place or pert thereof
to which only the search or inspection shall
extend? and the person charged with the execution
of such warrant shall then search or inspect
only the place or part so specified.

(3) Nothing contained in this section shall authorize

any Magistrate other than a District Magistrate or
Chief Judicial Magistrate to grant a warrant
to search for a document,parcel or other thing in
the custody of the postal or telegraph authority.
(a)

Section 93 gives very -wide powers to magistrates but,

in exercising them, they have to use their discretion

judiciously. Search warrants are not to be issued in a

light manner. It is important that for issuance of search

warrants,whether of a general nature or of a particular

nature,the issue must be confined to the strict

requirements of law. It is also equally important that in the

larger interest of the public and of the administration

of justice,public officers engaged in the discharge of their

duty connected with the investigation or inquiry relating

to offences or suspected offence-s should be afforded

fair and reasonable opportunities for searches in the course

of such investigation or inquiry, if applied for on

reasonable grouns a.nd if calculated to further such

investigation or inquiry. Accordingly,these two conflicting

 261

interests are to be balanced bv the magistrate while exercisir

“59
powers under section 93 of the Code* The section provides

for two kinds of searches one particular and the other

general. A general search means a search not in respect of

specific documents or things which the officer considers

as necessary and desirable for the purpose of investigation

in hand*but a roving inquiry for the purpose of discovering

documents or things which might involve oarsons for

60
criminal liability. Clauses (a) and (b) of subsection (l)

provide for a. ^particular search"',clause (c) for ’^'general

search'1*,

(b) Condi ti,ons under which search .can .b.e made

Section 93 contemplates three alternative conditions

under which a search warrant can be issued, namely, -

(1) Where the Court has reason to believe that

a per son, to whom a summons or order under
Section 91 or a requisition under Section 92(l)
has been or might be addressed,will not or
would not produce the document or thing as
'required by such summons or requisition? or

(2) Where such document or thing is not known

to the Court to be in the possession of any person? or

(3) Where the Court considers that the purpose of

any inquiry, trial or other proceeding under this
Code will be served by a general search or inspection.

The first two alternatives relate back to Sections

91 and 92,' the document or thing* referred to being

the document or thing which is wanted or the production

of which is necessary for the purposes of any investigation,

inouiry, tri al or other proceeding under the Code. The third

59 I-faid—

60. Paresh. Chandra v. Jg^n,drai_.lLa_th A.I.R.1927 Cal.93

at p.95.
 262
alternative makes no mention of any investigation and is

confined only to inquiries* trials. The term 'enquiry ’

relates to a proceeding held by a court or magistrate other

than a. trial .conducted under the Code of Criminal Procedure

while an investigation relates to the step taken by a

police officer or by any person ( other than a magistrate)

61
authorised in this behalf for the collection of evidence.

Clause (c) of section 93(l) had nothing whatsoever

to do with an investigation. It does not provide for any

step to be taken in aid of an investigation but it provides

for something which the magi sir ate may do for the purpose of

serving ah innuiry* trial or other proceeding under the Code,

The word ^investigation" is emitted in this clause? In

Section^ 91* Cr .P. C.* which provides for the issue of a summons

to produce a document*the words used axe '^investigation*

inquiry* tri al or other proceeding®. It is clear * ther ef or e*

from this1 omission of the word '^investigation" -that the

legislature did not provide for action under clause (c)

for the purpose of an investigation. A magistrate who

utilizes th.i s clause with a view to help in the investigation

of an offence does something which the Code does not

sanction. He cannot act under this clause unless after

consideration he is satisfied that the purpose of an

incuirv or trial of other -proceeding will be served bv a

63
-..si.ar.ch*- ■ -

61. lanoeror A, I.R. 1940 Cal. 97 at p.100

62. Said
63. Said
 203

(c) ®ho. .may ..Issua.search warrant

For the sake of brevity,the old Code used the terms

“Court' and 'Magistrate' generally if not always as

64
convertible terms. It is. not that a magistrate is not

competent to issue a search-warrant unless he is sitting

as a court, that is, acting judicially in some inquiry or

65
proceeding initiated before him. High Court and Sessions

Judcre can issue search warrant.-A Special Judge can

66
issue search warrant under section 93 (l) (c) . Sub Divisional

executive magistrate cannot issue a search warrant if one

has been rejected by the Hub divisional judicial magistrate

67
because they exercise co-ordinate power.

(d) Search warrant, may be issued before

For a magistrate to issue a search-warr ant*it is

not necessary that he should be sitting as a court i.e.,

some proceeding under the Code should have been initiated

before him. The form of the warrant (Form No. 10 in Sch.il)

contemolates the issue of a search-warrant before proceedings

68
of any hind are initiated.

64. Clarke v. B.rajend,r a ..Kjshor e Roy Chowdhu.ry I. L.R. 39 Cal.

95 3 ( P-.C.)

65. Ibid...

66-. SoneaatTea Co.. Ltd., v.C£nfc£.al,Jur^m-Q£-.Inxs^li^al^ibIl

1977 Cr.L.J. 151 (Cal.)

67. Prem v. Mil,87Cal.W.N.732

68. Sup ra. Note 6.

 264

There need not be a proceeding actually pending before

the magistrate at the time he issues the -warrant. A warrant ma

69
be issued for the purpose of an inquiry about to be mades

The phrase 99 for purpose of" in clause (c) of sub-section (l)

which is a very comprehensive terra# is not to be construed

as meaning.’'during the pendency of”. All that is necessary

is that the court issuing the search warrant should

consider on reasonable grounds that the purpose of any inquiry

trial or other proceeding under the Code will be served by

a general search.' The phrase for the purpose ofM is to be

construed as not in itself implying either the pendency

of the specified proceedings or the immediate or imminent

initiation thereof. What is necessary in such cases is that

the magistrate should reasonable be satisfied that the search

is likely to be a link in the chain which in the normal

course will lead to an inquiry under the Code if the

expected material is found on the search# and that he should

also be satisfied that there is reasonable ground for the

' 70
expectation.

(e) When search ..warjLant.-3halL_no.fc Insue

Search warrant cannot be issued for recovery of wife

from the custody of her father on the allegations that she

71
has been' confined there wrongfully. A court shall not issue

search warrant to enforce a hire-purchase agreement to

72
recover a :bus from the po sees si on of a hirer. It shall

69. • -In re Mohamad 'fVni r ..A.I.R 1934 Bom. 104

70. Sup,ra note §g

71. 3j shn v. Brno er or 6 Cr . L.J . 38
72. Hr 1 slkesh v.Michael# 67 Cal. L.J.569
neither be issued to serve the purpose of attachment

before judgment of a property in the possession of a

..............73 ..............
third party. The court shall not issue search warrant

against a. bank or for confidential government papers

in view of section 91 (3) ( a) of the Code. A general search

for stolen property is not authorised as the law requires

mention of specific things in the search warrant. A general

search for fishing evidence is not authorised. But during

the search if any other incriminating document or thing

is found in possession of the accused/ it is admissible in

evidence not withstanding the fact that the search was

74
illegal.

(f) S.earch.._wa.rr ant agai nst -the ■accused.

Since section 91 does not apply to an accused and

summons cannot be issued to him for producing a document

or thing so a search warrant .cannot be issued, under

section 93 (l) (a) for the production of documents or thina

"1
|~ j Ln

in the possession of an accused as held in State v. Shy ami a

but search of the premises of an accused person under

76
clause (b) and (c) of section 93 (l) is, permissible. A

notice to produce is address to the party concerned and

his production in compliance therewith constitutes a

73. In re Nizam I.L.R.19 Cal.52

74. M.I.Mamsa v.Brvperor A.I.R. 1937 Rangoon 206

75. State of Guirat v. Shy ami af A. I. R. 1965 S.C. 1251

^6.
 208

testimonial act by him within the meaning of Art* 20 (3) of

the Constitution. But a search warrant is addressed to an

officer of the government, generally a police officer.

Neither the search nor the seizure are acts of the occupier

of the searched premises. They are acts of another to which

he is obliged to submit and are, therefore, not his

............. 77
testimonial acts. So,Article 20(3) of the Constitution

does not prohibit the police from searching either the

person of the accused, or the premises in the manner laid

down bv the Cede. The magistrate is empowered to issue a

78
search warrant against the accused.in this respect.

In the United 'States of America,the position is

79
the same as held in Anderson v. Marvland.

A party is privileged from producing the evidence

but not from its production. Thus,although the
Tilth Amendment may protect an individual from
complying with a subpoena for the production of
his personal records in his possession,because the
very act of production may constitute a
compulsory authentication of incriminating
information, a seizure of the same materials
by law enforcement officers differs in a crucial
respect* the individual against whom the search
is directed is not required to aid in the
disco very, product! on or authentication of
incriminating evidence. 80

77. M.P.Shprms v. Satrsh Chan dr.? A. I. R. 1954 S.C. 300

78. Sarualingam Che.t_ti.ar, in Re A. I.R. 1955 Mad. 685.

79. 427 U.S.463 (l976) .

80. IfcLfl
 o Q *'l
cb i

(g) ■ frJhen, warrant-, foi gener.al_sa.ar.ch

may be issued under Section 93 (l) (c)

A warrant,for a general search or . inspection may be

issued under clause (c) of sub-section (l) if the Court

is satisfied that the. purposes of any inquiry, trial or

other proceeding under the Code will be thereby served.

A warrant for search cannot be issued under clause

(c) if what is required are specific documents or articles

including books of accounts, etc. , alleged to be in the

custody of the accused. If they are known to be in the

possession of the accused and their location and place

of storage is also known, the warrant cannot be a-general

warrant for search and inspection and cannot be issued

under clause (c) . It will be covered by clause (a) of

81 .
sub-section (l) *

A warrant cannot be issued for the purpose of an

inquiry,other than an inquiry under the Code. .

A warrant cannot be issued for the seizure of

records and their delivery to the customs authorities

82
for inquiry by them into a non-cognizable offence*

An investigation by the police is not an enquiry

or trial. Under section 2(h) , an investigation under the

Code,during which a police officer or any other person

.authorised by a.magistrate collects evidence, is a

proceeding under the Code. An investigation by the police

81 Shi v ’Paval v. Sohan Lai A. I.R. 1970 ? & H 4^8 at p.471

32 In re n' r A.I.R. 1934 Bom. 104.

 268

is,.therefore, a proceeding under the Code pud a search-

warrant mav> therefore, be issued in aid of. such an

investigation. The word 'investigation' occurring in

.section 91 (l) has not been used in this .section. But

the comprehensive expression1 or other proceeding under

the Code' will include 'investigation by the police', and

a search-warrant may,therefore, be issued in connection

' . ' ' 83..............
with the same. This view "Sears to be incorrect with due

respect as it does not take into account the fact of

non-inclusion of the word investigation in section ■

93(l) (c) . The reason being that police has .got

independent powers to search without a warrant under

section l65,Cr.P»C., during the course of investigation

of an offence. Therefore, the procurement of search

warrant shall not be necessary in the course of

investigation of an offence by the Police for which the

police is authorised to investigate.

magi stx ate

Section 93(l) confers a discretion on the magistrate

to issue a search-warrant.He is not compelled to take

84
action. He may issue a search-warrant. The discretion is,

however,not unfettered. It must be governed by rule,

not by humour? it must not be arbitra.ry,vague and fanciful*

83. ■ See I.L.R.(l978) 2 Punjab 305 and AIR 1965 Mysore 214.

84. Shr 1 Malic.i o . Pernandes v.jMohan A.I.R. 1966 Goa 23

 263

but legal and regular. He may direct on investigation by the

police before issuina the process of search-warrant

85
under this section.,

The courts will not assist the doing of what is

prohibited, by law. No. warrant involving the disclosure

prohibited by section' 54 (l) of the Income Tax Act# 19 22,

' 86
( now section' 138 of the 1961 .-Act) can properly be issued.

The issue of a search-warrant is a judicial

function of the magistrate. The words "reason to believe1

coupled with other words in the section contemplate an

objective determination based on intelligent care and

deliberation involving judicial review as distinguished

from a pur el v subjective consideration. This function being

■8 7
judicial,the magistrate has to apply his mind judicially.

A notice to the opposite party against whom search warrant

is to be issued is not contemplated under this section.

Therefore, a search warrant will not be invalid merely because

it was issued ex-parte without any notice to the party

88 '

concerned.

(i) Meaning-of ”ree.sons to,..bell ev.era

It is a condition precedent to the issue of a

search warrant under clause (a) of sub-section (l) that

the court must have reasons to believe that the person

against whom the search-warrant is issued is not likely to

produce the document or the thing in his possession as

required by-a summons- or order-under section 91 or

in yo
co co co co

Ikid-
■IncQECLa-.Xax.. Officer, v.Sjiate#A.I.R.l950 E.P. 306 (P.Q.)
•

ap By
t-~ co

Sunra note
e
•
 270

a requisition under section 92 (l), served upon him. It is

the dutv of the court in the first instance tc consider if

89
a summons to produce would not have the desired effect.

Clause (c) of section 93 (l)does not require the

90
previous issue of a summons under section 91. But even

under that clause a search-warrant is not to be issued

automatically or for the mere asking. It can only be issued

when the court considers that the purposes of an enquiry

would be served. The provision that it is only a court

that can issue the warrant and that the court will issue

it only after consideration is sufficient indication of what

is required of a magistrate when he deals with such

application. The magistrate should ascertain from the

officer seeking search warrant the nature of the Information,

whether It is credible,reliable and contains an allegation

of an offence and is sufficient for issuance of a search

warrant applied, for. The magistrate must apply his m judicial

mind to the question and must satisfy himself that the issue

of the warrant is necessary and that the requirements of the

lav; for the issue of the warrant are present. He must see

89. See ,C. Iyavoo Chet tv v. Jahangir H.Hfflmeg.A.I.R. 1918 Ma

587

90. Karsondas Naranji v.Ramj-1. &. 1.7.195 1 Kutch 8 2 at p .83

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 26 of the Arms Act* 1878,it has been held that failure to

record reasons for the belief of the magistrate is a. grave

9-6
defect0

(k) Search under other Acts

The provisions relating to .searches under this Code

shall* so far as they can be made applicable* apply (l) to

a search under section 8 cl . (l) of Act .1X1 of 1890 (Prevention

of Cruelty to Animals)* (2) to a search under Bombay Act II

of 1890 (Salt) ,Cl. 2* (3) .to searches by officers authorised

by rules under Section 7 of the Indian Explosives Act*Iv

of 1884? (4) to a. search under the Central Excise and -Salt

Act I of 1944? (5) to search, under the Arms Act 1959 (Act

No.54 of 1959) which in Bengal must be conducted in the

presence of some officer specially appointed by name or in

virtue of his office by the Provincial Government* and all

magistrates and police officers not below the rank of

97
Inspector have been so appointed* 'Searches made under the

provisions of the Ooium Act I of 1878 must be made in

98
accordance with the Code. Under Section 25 of the Indian

•Arms Act* a magistrate must,before causing search to be

made,record in writing the ground of his belief that a person

has possession of arms*etc.' -for an unlawful purpose, and

when he conducts a search without so recording*the search

is illegal and the magistrate is guilty of a trespass if he

99
enters into any building. Under section 93 Cr„P„C„*a
"-J c?»i

gagla—Baha v.jS&ajfc£ A.I.R.1957 Orissa 130

Q mj

Calcutta Gazette 1878 Part I p.1850 .•

v
U3 KO
VQ CD

See- sections 14,15, 1.6 of 'Opium Act* 18 78

Clarice v. Bra Kendra K1 shore Rov .Cfaowdhury, I. L.R . 39 Cal.
953 ( P.C.) .
magistrate has power to issue a search-warrant for the

production of copies of an infringing book,proof,etc.,

for the purpose of making an order under Section 10 of the

100
Indian Copyright Act,IXI of 1914 (now the Copyright Act, 1957).
1
In anperor v.Aslan, application of these provisions

was explained for the searches under the Bombay Gambling

Act, 1897? Section 10 of the Prevention of Pood Adulteration

Act,37 of 1954,empowers Food Inspectors to search and seize

in accordance with p.rovisions of this Code.

The power of search carries with it the oower to

2
seize the documents or things,notwithstanding the fact

that this provision has not been specified in the section

itself. The power of seizure is implied. Section 93(l) (c)

comprehends not onlv inspection of the place but also seizure

of documents or things which the court considers necessary

3
or desirable. An illegal search even does not vitiate the
4
seizure.

(m)

The Macdstrate who is competent to issue a search

warrant may himself conduct the search. He can also remain

5
present at the time of search and supervise the search.

(n)

Where a police officer deputed to make an investigation,

o
H N

in
u
Q\
oco ™

co
H

H
•H
b a.

*
W •
CO

Gfij Ot-Hi
C
m

-<03

»
* *
•
K1
H

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in
but not empowered to enter a house in search of property,

does make a search without a warrant,the illegality of such

search cannot justify any resistence or obstruction under

section 99,1.P.C.-, unless it is shown that the officer has

6
acted otherwise than in good faith and without malice.

Where on the complaint of the husband that his wife was

wrongfully confined by his father-in-1 aw, a warrant was

issued under this section and the police officer attempting

to execute the warrant was obstructed and criminal force

used by the accused., it was held that the accused were not
7
guilty as the warrant was illegal.
(o) M^soaaI^of_±hJLxigs__sa3-zed

If a. document had been seized by the police for

investigation and the court considers it unnecessary for

investigation it may be returned to the person from whom it was

8
seized. Ordinarily the seized prooertv should be returned to
9
the person from whom it was seized. But the property shall

not be returned to the thief although it was recovered from

10
his possession.An article or a document involved in a

criminal case should be returned to the person entitled to

possession if his possession is found to be bona.-fi.de and

'11
without any knowledge of criminality or criminal intention.

The disposal of property seized under the various

 275

In England except in the case of stolen goods there

is no power at common law to issue warrant authorising

the search' of house#but provision is made by statute for the

issue of search warrant in certain specified cases# for

example ■ section 51 of the Betting#Gaming and Lottery Act#

section 4 of the Biological Weapons Act# 1974, section 11 (3) of

the Coinage Offences Act# 1936# section 296(3) of the Customs

and Excise Act# 1962# section 46 of the Fire-Arms Act# 196s#

section 23(3) of Misuse of Orugs Act# 1971# section 3 of

Obscene Publication Act# 1959 and section 36(1) and (3) of

12
Theft Act# 1968 etc. The practice of issuing warrant for

general search has been condanned except in the case of

search for stolen goods under the larceny Act# 1916.

In the U.S.A. also there is no provisions for general

search warrant. In accordance with the basic right guaranteed

by the Fourth Amendment of the Constitution of the United

States#the courts have the power to determine in each case

whether search and seizure have been unreasonable. or

unconstitutional violating the provisions of the Fourth

Amendment i.e. (l) no probable cause exists for the search

warrant(2) the search is itself unreasonable and (3) the

officer issuing the warrant is imoartial and detached from

13
the police or the prosecution.lt is because a search is a

drastic act#therefore#necessary precautions are taken that the

power vested--is--not—abusedv'........ ................-.........

12. See supra Ch.II for detailed analysis.

13. See supra'Ch*III for detailed analysis
 276

^aa£gh-iiL-lDdijaiiSifll^nd-aiici-Xfoltgd..St at e s

of America

In England as well as in India the seizure of

evidence by illegal means is not viewed as affecting the

quality of the materials obtained. As a consequence of this

thinking that evidence is evidence,however,it is obtained,

the Courts did not refuse to admit materials into evidence

merely because they were o?otained through an unlawful

search. A judge, however, has a discretion to ex elude

evidence, even though technically it may be admissible,

as part of his. duty to secure a fair trial of the accused.

14
In R.V.Sang the House of Lords reviewed this discretion

and held that a trial judge in a criminal trial has

always a discretion to refuse to admit evidence if in

his opinion its'prejudicial effect outweighs its

15
probative value. According to„Jeffrey v. .Slack the

discretion could only be exercised when the police in

obtaining the evidence had not been merely been guilty

of technical infringements of the law,but has used

trickery, or had mislead some one,or had behaved in

a manner which was unfair,oppressive or otherwise morally

reprehensible.

14. 1979(2) All.E.R. 12 22.

15. 1978(1) '0.3.490

 277

In .St.at.e- .of.. M.akgg^___

_v. NatK.exl.al/ . the Spprene Court

has reiterated that even if the search is illegal the

seizure of the articles is not vitiated where the provisions

of Cr.P.C. regarding search are contravened the search could

be resisted by .the person whose prarises are sought to be

searched. It may also be that .because of the illegality

of search the court may be inclined to examine carefully

the evidence regarding seizure. But beyond these two consecuenc

17
no further consequence ensues, whether such contravention

would vitiate the trial or its effect would depend upon the
■' 13
question of prejudice caused to the accused person.

In United States of- America all evidence obtained

by law enforcement officers'by searches and seizures in

violation of Fourth Amendment is inadmissible in evidence in

19
federal as well as state courts as held .in' Mapp v. Ohio-

This rule is known as 'exclusionary rule' and acts as

a deterrent to the illegal conduct of the law enforcement

20
personnel.

Cfe ft-b fsT i^sg) sue. Sd3

17. Radha Kishan v. State of U.P. A.I.R.1963 S.C.8 22 tt
p.8 24

18. IMj2

19. 367 U.S. 643 (1961X

20. See_Sypxa Ch.III

 278

2. SEARCH OF PLACE SUSPECTED TO

CONTAIN STOLEN PROPERTY.FORGED

DOCUMENTS.ETC.

Section 94 of the Code of Criminal Procedure,1973

contemplates issuance of a search warrant to search a place

suspected to contain stolen property, forged documents

or .objectionable articles. It runs as under:

S.94 (l) If a Di strict Magi str ate, Sub Di vi sional

Magistrate or Magistrate of the first class,
upon information and after such inquiry as he
thinks necessary,has reason to believe that
any place is used for the deposit or sale of
stolen property, or for the deposit, sale or
production of any objectionable article to
which this section applies, or that any such
objectionable article is deposited in any
pi ace,he may by warrant authorise any police
Officer above the rank of a constable—

(a) to enter,with such assistance as may be

required, such place,

(b) to search the same in the manner specified

in the warrant,

(c) to take possession of any property or

article therein found which he reasonably
suspects to be stolen property or
objectionable article to which this section
applies,

(d) to convey such property or article before

a magistrate, or to guard the same on the spot
until the offender is taken before a magistrate,
or otherwise to dispose of it in some place of
safety,

(e) to take into custody and carry before a

magistrate every person found in such place
who appears to have been privy to the deposit,
sale or prodiiction of any such property or
article knowing or having reasonable cause to
suspect it to be stolen property or, as the
case may be,obj actionable article to which
this section applies.
 279

(2) The objectionable articles to which this section

applies are-.™

$a) counterfeit coins?

(b) pieces of metal made in contravention of the

Metal Tokens Act, 1889 (1 of 1889) or brought into
India in contravention, of any notification for the
time being in force under s. 11 of the Customs Act,
196 2(5 2 of 1962)?

(c) counterfeit currency notes5 counterfeit s±eamps?

(d) forged documents?

(e) fal se se al s?

(f) obscene objects referred to in s. 292 of the

Indian Penal Code (45 of I860)?

(g) instruments or materials used for the

production of any of the articles mentioned in
els. (a) to (f)

The section makes it. clear that (i) the search warrant

can be issued only by a District Magi strata, Sub Divisional

Magistrate, or a magistrate of the First Class? (ii) the

person" authorised to search must be a police officer

above the rank of a constable? and (iii) before a warrant

is issued the concerned magistrate must have reason to

believe that the place is used for the deposit or sale of

21
stolen property etc. In applying section 94

the magistrate should have information. He must also

conduct the inquiry as he thinks nec€?ssary. On the basis

of such inquiry he must have reason to believe that any

place is used for disposal of stolen property. He must

applv his mind before issuing the search warrant under

22
this section.

21. Pin e sh • -Auto FInance v.State of A.P.1988 Cri .L.J. 1876

22. Gang ^dhar.an v..KQCliaaal-.^Shglla 1985 Cri.L.J. 1517 (Her.
 280

The essential requirenent of the section is

that there must be some allegation or information#which

the magistrate believe#that a particular place is used

for the deposit or sale of stolen property or for

manufacture of forced documents, fal se seals# counterfeit

23
stamps#etc« Before a magistrate acts under this section#he

must have information and may make some inquiry#though

the nature# scope and character of such inguirv is not

24
defined. The expression m reason to believe4* in this section

is entirely different from the expression9* cause to suspect4*.

The former connotes a great deal more than is conveyed

by the latter. There may be cause to suspect about the user

of a place for a particular purpose#but the officer who

issues the warrant has to bring his judicial mind to bear

upon the question# and he can issue a warrant only if

in his opinion there is reason to believe that a dace ®

25
is used for a specified purpose.

When a search-warrant is issued under this section

it is not necessary that any proceeding should be pending

23. &mlna Bawa. v.T>ukhlm-Q.ni_D.asl 1957 Cr.L.J,66g at 670

24. Slipxa note 22.

25 Wei v taker v. Sinnernr A.I.R.1926 Cal.966 at pp.968,969

 281

Still the thing seised must be produced before the

magistrate. It is sufficient that a search-warrant should

be in view of an inquiry to be made. The non-existence of

a pending proceeding in court can, therefor e, be no reason

for holding that the production- of the thing seised before

26 '
the court of the magistrate is not necessary.

There are essential differences between this

section and section 93 which are listed below?-

(l) Section 93 authorises any court to issue a

search warrant. It will include all magistrates and all

sessions judges. This section, on the other hand,empowers

only a district magistrate, sub divisional magistrate, or a

magistrate of the first class to issue a warrant for

searching a place suspected to contain stolen property etc.

(2) -Section 93 empowers the court .to Issue a warrant

for searching for any document or thing,while under this

section a warrant can be issued only for searching a place

use—(i) for the deposit or sale of stolen property?

(ii) for the deposit or sale or production of any

ob j ecti on abl e ar ti cl e?

(3) Section 93 authorises a court to issue a

search -warrant on receipt of information of the commission

or suspected commission of a particular offence. This

section authorises the magistrate mentioned herein upon

information to issue a warrant for searching a suspected

place of deposit of stolen property or any objectionable

article, ■

26, S.K, Sri vast ava v.Gnj anand,.&. I.R. 1956 Cal.609 at do.611
*-TT=----------------------------------------------------- ---------—
 282

(4) A power to seize and take possession is not

expressly given under section 93,whereas under this section

such a power is expressly vested in the police officer

searching under a warrant issued under this section.

(5) The police officer is also entitled under this

section to take into custody any person found in such a

place and suspected to have been privy to the deposit,

sale,etc. of such property. Section 93 does not confer

any such power.

(6) Section 94 contemplates only a surprise search

for the recovery of articles,while under section 93

search-warrant could be issued on failure of the party to

produce an article or thing on summons.

(7) A search-warrant under section 93 can be issued

to any person bv virtue of sections 99 and 7 2 of the Code.

But this section expressly restricts the right to a police

officer above the rank of a constable and hence section 72

27
will not apply.

The question of legality of a search warrant issued

under section 93 depends upon whether there is any

investigation,inquiry,trial or other proceeding under the

Code as mentioned in section 91. Thus issue of a search

warrant where no investigation,inquiry or trial or other

proceeding as mentioned in section 91 was pending,the

magistrate was held not to have acted judicially at the time

28
of issuing -search warrant.

27. R..ash.. BibarjL_L.al_M_an.4al v.%i££m£ I.L.R.35 Cal. 1076

at~p . 108 1
28 Said
 283

The question in deciding what is and what is not

obscene is always a difficult one. Obscenity is not defined

in the Penal Cede. **The test of obscenity is this#

whether the tendency of the matter charged as obscenity is

to deprave or corrupt those whose minds are open to such

immoral influences#and into whose hands a Publication of

29
this sort may fall"5. For the purpose of deciding-whether

a picture is obscene or not one has to consider to a great

extent the surrounding circumstances#the pose#the posture,

the suggestive element in the picture#the person into whose

hands it is likelv to fall#etc# No hard and fast.rule can

30
therefore be laid down for the determination of the matter,

(e) S^jiaI^i^aaaal-a£-J:]iijnii^aaizad •

After the warrant is issued# it is an order of the

magistrate enabling the customs authorities'to take action#

for without warrant they cannot enter any house or premises.

A condition in the warrant that the goods or documents

should be produced before the magistrate must be complied

with, and once they are produced before him# it is for him

to decide# in the circumstances of each ca se# whether

3!
he would make than over to the customs authorities or not.

29. Nag v.(isos) 3 Q.B 360 at p.37l

30. Sree Ram -Saksena v. Emperor A.I.R. 1940 Cal. 290 at p.291

31 MsM.SgiLaiuMln A.I.R. 1962 S.c.759 at p.763

 284

Now section 105 of the Customs Act, 1962#empowers

the authorities under that Act itself to search and. seize

in accordance to the provisions of that Act. The customs

authorities now need not go to the magistrate for search

32
and seizure.

(3) search and seizure of certain

PUBLICATIONS FORFEITED TO Q0V.SRMM5NT

Section 95 of the Code of Criminal Procedure

empowers the State Government that it may,by notification,

declare every copy of the newspaper or book or any document

containing any matter the publication of which is punishable

under sections 124-A, 153-A, 153-B, 29 2, 293 or section 295-A of

the Indian Penal Code' forfeited to the Government and upon

'sbchh declaration any magi str ate may authorise search and

seizure of such material by issuance of a search warrant to

any police officer not below the rank of a Sub Inspector.

Section 95 runs as unders

s.95(l) Where-
•(a) any newspaper> or book, or
Cb) any document,

whereever printed, appears to the State Government

to contain any matter the publication ,of which Is
punishable under section 124-A or section 153-A
or section 153-B or section 29 2 or section 293
or section 295-A of the Indian Penal Code(45 of
I860),the State Government may,by notification,
'stating the grounds of Its opinion, decl are
. every copy of the issue of the newspaper
containing such matter,and every copy of such
book or other document to be forfeited to
Government, and thereupon any Police Officer may
seize the. same wherever found in India, and any
Magistrate may by warrant authorize any police
Officer not below the rank of Sub-Inspector to
enter upon and search for the same in any
premises where any copy of such issue or any such
book or other document may be or may be reasonably
---------------------------- -------- ----------------- 0SSS©_________ ___ ________________ —---------
3 2. Under Section 105 of Sea Customs Act 1962
 285
suspected to be,

(2) In this section and in Sec,96,--

(a) "newspaper" and "book" have the same

, , meanincr as in the Press and Registration
of Books Act, 1867 (25 of 1867);

(b) ‘"document" includes any painting,

drawing or photograph, or other visible
repre sentation.

(3) No order passed or action taken under this

section shall be called in question in any Court
otherwise than in accordance with the provisions
of Section 96,

(a)

Section 95 enables the State Government by

notification in the Official Gazette, after stating its

grounds for its opinion,that any newspaper,book,or document

contains—

(i) any seditious matter punishable under

Section 124-A of the Penal Code? or

(ii) any matter promoting enmity between different

classes or at places of worship,punishable

under Section 153-B of the Penal Code? or

(iii) any matter containing obscene books or

obscene objects punishable under section

29 2 or 293 of the Penal Code? or

(iv) any matter which anounts to maliciously-

insulting the religion or religious beliefs

of any class,punishable under Section 195-A of

the Penal Code.

' to declare every copy thereof forfeited to the State

 286

Government. Thereupon any police officer may seize

such newspaper,book, or document,wherever found in India.

Any magistrate is also authorised to issue a search-

warrant for its seizure.

Under section 96(i) any person having an

interest in such publication may apply to the High Court

within -two months of the date of the order of

proscription to set aside such order on the ground that

it did not contain such matter as is referred to in

section 95.

Under section 96(2) every such application

shall be heard and determined by a Special Bench of the

High Court composed of three judges and where the High

Court consists of less than three judges such -Special

Bench shall be composed of all the judges of that High Court.

Under Section 96(4) (5) if the Special Bench of

the High Court is not satisfied that it contains such

matter as is referred to in section 95 (l), the order

33
of forfeiture may:be set aside.

Sub-section (3) of this section contains a

prohibition against any other mode of calling in question

the order of forfeiture made under sub-section(l) except

in the manner indicated under' Section 96(1) . Where the

order of forfeiture, was made by the Government of West

Bengal and the Government of A.P. -republished the

notification,thereupon the compiler of the book applied

under section 99-B. (old), to the High Court of A.P. for

In"re~^uolal~~Ka^ur. I.R..1955..Mad~429
 287
setting aside the forfeiture,it was held that the applicant

should move the Calcutta High Court for it has the jurisdiction

It is the order of forfeiture that furnishes the cause of.'

34
action and not the re-publication.

(b) Ground a_o.£ _qo inton

. The grounds of opinion are a vital and essential

part of the notification. It is those grounds which reveal

the jurisdiction for the issuance of the notification. A

notification, in order to be legal and effective,must

comply with and fulfill this requirement. The compliance

is a .sins aua non Of the validity of the notification.

which does not incorporate the grounds of the opinion.

The law in this respect has to be substantially complied with.

It is not enough merely to reproduce the language of sections

124-A, 153-A or 295-A of the Penal Code without specifying

as to how and in what manner there has been contravention

35
of the provisions of these sections.

To state the grounds of opinion without stating facts

does not amount to a statement by the Government of the

36
grounds of its opinion. The opinion formed by the Government

must be stated in an exact and concrete form in the order

itself so that it mav be a proper and sufficient oninion

37
for the purposes of the section. The mere fact that the very

34. In re Ghularn Sarwar Pi car. A.I.R. 19 6 2 A. P.5 26

3 5. Hohd Khalld v.Chief. Comm i-ssi.oner, 1967 (69) Punjs.L.R.

(P.S.) 279 P.B.-
See also State .9f TJ.P.v.Lalni..Singh. Yadrr,A. i.R. 1977 3.C.
20 2
36 Harnam Pass v. State of U.P.- A.T.R.1961 S.C.1662
 288
words which are used in this section are not used in the

order passed by the Government does not invalidate the

-......... . ............... 38
order. But in the case of Ham am das v. State of IT-P..

the Supreme Court has held that where the Government did not

state the grounds of its opinion,the High Court must set

aside the order. The Supreme Court observed*

The Code no where provides for an order of

forfeiture being made by the High Court, We are,
therefore, of opinion that under section 99.-15
it is the duty of the High Court to set aside an
order of- forfeiture if it is not satisfied that
the grounds on which the Government formed its
opinion that the books contained matters the
publication of which would be punishable under
any one or more of sections 124-A, 158-A or 295-A
of the Penal Code could justify that opinion. It
is not its. duty to do more and to find for itself
whether the book contained, any such matter
whatsoever*

“’What then is to happen when the Government

did not state the grounds of its opinion. In such
a case if the High Court upheld the order, it may be
that it would have done so for reasons which the
Government did not have in contemplation at all. If
the High Court did. that, it would really have made
an order of forfeiture itself and not upheld such an
order made by the Government. This, as already stated,
the High Court has no power to do under Section 99 (l) .
It seems clear to us, therefore, that in such a easel,
the. High Court must set aside the order under
section 99-15, for itd cannot then be satisfied that
the grounds given by the Government justified the
order. You cannot be satisfied about a thing which
you do not know,- This is the view which was taken
in Arun-P-jjan..Ghcis.e_v. 39
and we are in complete agreement with it. The present
one is a case of this kind. We think that it was the
duty of the High Court under section 99-15 to set
aside the order of forfeiture made in this case.
In view of the above pronouncement, the law laid down
by Andhra Pradesh 40 and Allahabad High Court,41
is no longer good law, 4 2
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 283

4. SEaRCH FOR PERSONS WRONGFUIiLY

CONFINED

When any person is confined under circumstances that th

confinement amounts to an offence a search-warrant may be

issued for search of such a person under section 97 of the

Code of Criminal Procedure which runs as under! • ■ •

3.9*7® If any District Magistrate, Sub-Divisional-

Magistrate ,.or Magistr ate of the first class has
reason to believe that any person is confined
under such circumstances that the confinement
‘amounts to an of fence,he may issue a search-
warrant, and the person to whom such warrant is
directed may search for the person so .confined"
and such search shall be made in -accordance therewith,
and' the person, if found, shall be immediately taken
before a Magistrate,who shall make such order as to
in the circumstances’of the case seems• proper.

Before a warrant is issued under section 97 the

magistrate has to satisfy himself that a person has been

wrongfully detained. However, the section does not cast any

duty on the magistrate to hold a detailed inquiry or to

record such findings which are necessary after adjudication.

Nor there is any right ’for the affected party to be heard

before the magistrate issues the seatch warrant. This

section contains emergency provisions but it.does not mean

that a warrant shall be issued automatically without

application of a judicial mind to the allegations made in the

application moved for the purposes and other material which

may be placed before the magistrates The expression “reasons

to believe181 implies a belief in judicial mind so that it

after considering all- the available material ’with- a' sense of

 290

resoonsibi litv,without ignoring# so far as possible# the

43
other side of the controversy*

This section can be invoked by a father to rescue

his married daucrhter from the wrongfully confinement by her

44
in-laws. In case of a oer son wrongfully confined by a

gharao a. warrant can be issued under this section for his

45
rescue.

(b) T±!,.e_ScQo.£„ .af_.sec±i-Qn97,.Cr .P„.C. as

The warrant under section 97 is in the nature of

Writ of Habeas Cornu s for rescue of wrongfully confined

person by intervention of police directed by a ma.gi steri al

46
order. In India the Writ of Habeas Cornus is probably

never used bv husband to regain his wife and the

47 '
alternative remedy under section 97 is always used.

The jurisdiction under this section is not as wide as that

conferred by Article 226 of the Constitution. The Punjab and

Haryana High Court issued a roving Writ on June l6,1995

for search and production of Mr s.Phulwati, a resident of

Fatehgarh-’Sahib district who has been missing for the oast

several months on a Writ petition filed by her close

relative under Article 226 of the Constitution. Judge

ordered that a warrant officer should be appointed to raid

43. Anu.ara Begum, v.HabJ-l._M.e_a 1962 (2) Cri.L.J.i59 atp.l6o

44. Previn gingh v. Bih^ril al. Singh 1989 Cri .L.J. 1386 (BomH. C.
45 J ay -E-ng-i neeri ng Works v. .'State..A. I. R. 1968 Cal. 407
46.
47. Mohd. Ikr am H a s s.an,..v. St at e.. nf H. A. I. R. 19 6 4 S. c. 16 2 5
 291

any premises in any state pointed out by the petitioner

to recover the detainee. Warrant officer might also seek

AO
4 d
the help of the Police authorities in this regard.

(c)

There is no provision in the Code under which a

person produced before the court under this section rn?^ be

49
called upon to give bail.

5. PQtfm TO COMPEL RESTORATION OF

ABDUCTED FTMA LF3

The power to compel restoration of abducted females

is contained in section 93 of the Code of Criminal Procedure

which runs as under*

S.98 Upon complaint made on oath of the

abductfedn or unlawful detention of a woman/
or a female child under the age of eighteen yearS/
for any unlawful purpose, a 'District Magistrate,
Sub Divisional Magistrate or Magistrate of the
first class may make an order for the immediate
restoration of such woman to her liberty,or of such
female child to her husband,p erent, guards, an or
other person having the 1 awful charge of such
child and may compel compliance with such order,
using such force as may be necessary.

(a.) ScjQEjS

Section 98 is intended to give immediate relief to

a person who is in unlawful detention for an unlawful

purpose. It aims at summary disposal, of an application.

A protracted inouirv in such matters would defeat the verv

50
object for which this section has been enacted. Before the

'magistrate exercises-the -power under this section,he must

48. See The Sunday Tribune June 18,1995,p.3

49. Angara Begum v.Habll Me a 1962(2) Cr„L.u.l59
50. Dhi v7Fb.rl~lai A.I.P.1959 M.P.356 at p.353 .
be satisfied that the':? is detention against the will

of those who are lawfully entitled to the custody of the

minor girl, and the ounose of the detention is also

unlawful. Both unlawful detention and purpose must be

proved,and if either is not established the magistrate ha

not the jurisdictb on to pass orders under the aforesaid

51
section* In proceedings under this section,the magistrate

has no jurisdiction to decide the civil rights of the

parties. The civil right of the applicant before the

magistrate assuming that he has such a right to give the

girl in marriage does not entitle him to an order under

this section, for proceedings of civil nature cannot be

52
converted into those of criminal.
53
In Par an bath Kanaran v.Vasude van It was held that

before the magistrate directs the production of the girl,

he must be satisfied that the marriage has taken place.

The proceedings should be nuashed as the dispute could

be decided more satisfactorily by a civil court than by

summary order of a magistrate.

Section 98 does not authorise a magistrate to

issue notice to Persons accused of unlawful detention to

54
produce the detained woman. There is necessarily no
— 1
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 293
consequently the provisions of sections 200 and 203

which relate to the procedure to be employed by a magistrate

taking cognisance of an offence do not apply to

55
proceedings under this section. The magistrate has no

power to order a preliminary inquiry by a subordinate

magistrate* for the provisions of section 202 do not apply

to cases under this section. Section 202 deals with a as

Mcomplaint of an offence” while there is no complaint of

any ’’offence11 under this section with a view that the

magistrate should punish the offender. A preliminary

incruirv is also not permissible or desirable under this

'5 6'
section. Before issuing search warrant*the magistrate

should first issue a show-cause notice whv an order under

57
this section should not be passed. ’When a magistrate

passed an order under this section in general terms*that

a women be restored to liberty*without finding that she was

unlawfully detained by anyone or without ordering any

person to restore her to liberty*it was held that the order

was not one contemplated by this section. In such situation

where a magistrate has reason to believe that a woman

is being unlawfully detained*but cannot find who so detains

her*the proper course for the magistrate is to issue an

order to have the woman brought before him and to examine her

$7here a complaint is made by the husband that his

father-in-1 ew is wrongfully detaining his -wife* the

55. Thakar Bass, v. Bhagwan—Ha.ss 4 Bom. L.R.609

56. Tni si. .Bass v. Chet an .Das A.I.R. 1933 Nag. 374

59. Saabai v. I&mkaii. A.I.R.1955 Hyd. 153 at p.156

 294

magistrate should hold an inouiry into the matter of

the complainant, examine witnesses as to the age of the

girl, or as to the reason why the father does not

think it fit to send his daughter/girl to her husband. The

High Court in revision set aside the order made without any ■'£

such inguiry#especi ally as the complaint did not state that

53
the girl was being detained contrary to her own wish.

(c)

The word 'complaint* has been used in a basic sense

and is not to be equated with a complaint made under

Section 200 or as one defined under Section 2(a) where it

connotes certain allegations made before a magistrate that

some persons have committed an offence. Here the word

onlv means the ventilation of a grievance about a certain

59
matter specified in the section.

The expression 'complaint on oath* does not also

mean a complaint made in a statement on oath recorded

in court, or a complaint supported by such a statement.

If an affidavit is filed in support of the complaint,the

So
requirements' of the law are met,

(d) ^±.alned_jiQrn,.an-_no.t-±o_-b-e.-ar.r.eL£t-ed

The abducted woman in unlawful detention can only be

restored to her liberty. She cannot be arrested. The

59. Suprg note $56at p.377

60. TpjLcI
 295
object of the section is to afford the relief of immediate

restoration of the wan an to her liberty, and the only order

that the magistrate can pass is to set her at liberty

forthwith. It is her absolute option and fundamental right

guaranteed under the Constitution to go anywhere she wants.

No restriction can be imposed on her personal libertv in

6l
proceeding under this section.

(e) Unlawful -PurQQ.se.

The expression **unl awfulw has not been defined in

the Criminal Procedure Code but it has the same meaning as

the word ^illegal1” occurring in section 43 of the Indian

Penal Code. In order that a process may be issued under this

section the woman or the girl must be shown to have been

detained for an unlawful purpose, and applying the section

only, as it does, to women and female children,it must not be

construed so as to make it include purposes which, although

not unlawful in then selves, might only become so when

entertained towards a child in opposition to the wishes

62
of its guardian.

A, detention for the purpose of persuading a girl

to become a Christ!an,contrary to the wishes of her guardian,

would not be unlawful within the terms of this section as

a girl of 18 years has a right to choose her own residence.

6l. Supra note ^3 s'0

62 note 33-
 296

The true principle by which, the court should be guided

is that it should judge from the circumstances of each

particular case, and that the welfare of the infant

irrespective of 'its age should be the main feature to be

' 63
regarded*
• .......... - • ' —• —■ ■ , ( I ; *

held that the words "'illegal5* and "unlawful" have the

same meaning under the Penal Code. The word "illegal" is

applicable to everything which is an offence or which is

prohibited by law or which furnishes ground for a civil

action. Therefore, the detention by a. Hindu father of his

minor married daughter contrary to the wishes of her -'

husband with the object @1" to remarry her would clearly

constitute "unlawful detention for an unlawful purpose". The

main purpose of the section is to protect women and girls

from detention for immoral purpose, although no doubt, the

section would be appropriate to cases where the purpose of th«

detention was clearly unlawful although not necessarily

65
immoral.

Inhere the father of a minor girl,who had been

declared to be the lawful custodian of the girl by a decree

of civil Court, applied under this section for the custody

^3 In the matter of Saithri. a minor, CLainoo. widow v.

MJ?Jkh££]ims I.L.R.16 Bom. 307

64 A.I.R* 1933 Nagpur 374

65 . Or! R.ad.ha v.Mn.tier.QX A• I.R* 1939 Sind. 15 2

 297

of the child alleging that the girl was unlawfully

detained by the mother# it was held# that/in the

circumstances of the case# the application was misconceived

as it could not be said that there was unlawful detention

66
of the child.A complaint by the husband that Ms wife

was unlawfully detained#would really, come under this

section to sav that a magistrate will have jurisdiction

67
to pass orders thereon.

C. 1?*RRM!TLBSS searches and

5SI7.URES

The general rule regarding searches is that the

search is to be conducted under a warrant issued by a

competent magistrate in this regard on the basis of

credible information and a reasonable belief that the

incriminating articles or things shall be found at a

particular place but there are certain exigencies where

it is necessary to empower reasonable police officers

to carry out searches without first applying to the

68
court for authority. The Legislature has,however#

attempted to restrict and limit the powers of the police

in case of warrantless searches and has provided certain

safeguards in order to prevent the abuse of these powers.

The emergency may be in the form of paucity of time with

the police officer or the chances of the evidence of crime

being lost i-f-immediate measures ar e not taken by the

66. MaMpo.d.-.E-?±iirLa v«Md...gln±hbiiddln 1959 lindh.L.T.III

6?. Anuara Begum v.Habil Me a 1962 (2) Cri.L.T.l59 at p.l6l
^Tripura)
68. Fmperor v.Mohd.Shah1946Lah.45 6 at p.458
 298
69
officer authorised to make search-.

1. WftSR&MTLESS '5 EARCH BY POLICE

OFFICER

The police officer who is officer incharge of the polio;

station or an investigating officer is authorised, to conduct

warrantless search of the premises under section 165 of the

Code of Criminal Procedure which is as under.*

3.165(1) "Whenever an Officer~in-char ge of a police

station or a Police Officer making an investigation
has reasonable grounds for believing that anything
necessary for the purposes of an investigation into
any offence which he is authorised to investigate
may be found in any place within the limits of
the police station/of which he is in charge#or
to which he is attached, and that such thing cannot
in his opinion be otherwise obtained without
undue delay, such officer may, after recording in
writing the grounds of his belief and specifying
in such writing# so far as possible#the thing
for which search is to be made# search#or cause
search to be made# for such thing in any niece
within the limits of such station,

(2) A police officer proceeding under sub-section( l) ,

shall#if practicable,conduct the search in person.

(3) If he is unable to conduct the search in person#

and there is no other person competent to make the
search present at the time,he may, after recording
.in writing his reasons for so doing.#require, any
officer subordinate to him to make the search, and
he shall deliver to such subordinate officer an
order in writing# specifying the place to be' searched#
and so far .as possible, the thing for which search
is to be made." and such subordinate officer may
thereupon search for .such thing in such place.

(4) The provisions of this Code as- to search warrants

and the general provisions as to searches
contained- in Section 1-00 shall, so far as nicw be# apply
to a search made under this section.

69.' See. Ch* HI also for American position.

 293

(5) Copies of any record made under sub-section(l)

or, sub-section(3) shall forthwith be sent to the
nearest Magistrate empowered to take cognisance of
the of fence, and the owner or occupier of the place
searched shall# on appli cation,be furni shed, free of
cost,with copy of the seme by the Magistrate.

aJ Lice.

under—section,

& search under section 1^5 may be conducted either by

an officer-in-charge of the police station or by a police

officer making an investigation, and not by any police

officers generally and at large. The investigating officer

is authorised to get the search conducted through a

subordinate officer in case he is himself unable to conduct

the search by authorising in writing the subordinate

officer after recording reasons for not himself making

the search after specifying the writing the placd to be

searched and, so far as possible,the things for which the

search is'to be made. An investigation does not always

start after the F.I.R. has been recorded. If a police

officer receives an information while on his beat and if

he delays the search under the formalities of going to the

police station and getting the information recorded,the

purpose of the search may be lost. If he makes a search

immediately, and an receipt of the information there is

nothing illegal in it.He has the "jurisdiction to make the

70
search. B*t where -the police officer is not making an

70 .Radhey Shy am v. State (1972) 74 Pun. L.R.CR.S.) 228.

 300
investigation,but is only directed by the magistrate to

enquire and report to the court under section 20 2/ if he

wants to seise the property,he can do so only under

section 28 6 of the Code if the conditions specified in

that section are satisfied. Further# since the matter is

pending before the court#the police officer could not seise

the property without the order of the court. The procedure

in such a case is provided under section 93. -1 search

warrant may be caused to be issued. The conduct of the

Dolice officer, if he himself seises the orcoerty,would

71
be entirely illegal,

(b) -S.ee. tJ-.-on—,165.

The power to search is incidental to the

investigation of the offence which the officer is

19

authorised to investigate. Under Section 165 four

conditions are imposed* (i) the police officer must have

reasonable ground for believing that anything necessary

for the our noses of an investigation of an offence cannot,

in his opinion,be obtained otherwise than by making a

search without undue delay* (ii) he should record in

writing the grounds of his belief and specify in such

writing as far as possible the things for which the search

i s to be mads.- (iii) he must conduct the search, if

practicable, in person* and (iv) if it is not practicable

to make the search himself, he must record in writing the

reasons for not himself making the search and shall

authorise a. subordinate officer to make the search after

specifying in writing the place to be searched, and, so

71 -w. K. Ki 71 a s an a SI nah v • K1 j am rbodhouba 51 nab, (1963)

*“7 <*•. Cr.L.J.lOO.
 301

far a.s possible,the things for which the search is

to be made, is search is a process exceedingly

arbitrary in character, stringent statutory conditions

are imposed on the exercise of the power. This section

defines the powers of a police officer to make a search

without a warrant. These powers are given to an officer-

in-charge, of a. police station or a police office” making

an investigation, and hot to police officers generally

and at large. ■Assuming the officer to be of the class

referred to,the next prerequisite is that he must have

reasonable grounds for believing that he will find a thing

in a place within the limits of his police station. His

being of that opinion is not in itself sufficient to

justify him in making a search. The normal procedure in

such a case is intended to be that he should apply to the

magistrate for a search warrant. The requirement of

a search warrant is dispensed with if he has reason to

believe that the thing for which he means to search

cannot be otherwise obtained without undue delay, that

is to say, that the object of the search would be

ftustrated if he welts, for a search warrant. If all

these conditions are fulfilled,the officer must record

in writing the grounds of his belief and specify in such

writing sc far as possible, the thing searched for. There

is one more essential preliminary. Section 100 of the

Code must be complied with, that is to say,before making

the search, he is to call upon two or more respectable

 302

inhabitants of the locality to attend and. witness the

search which is to be in their presence* When he has done

all this, and not before, the Code authorises him to search

or cause search to be made for such thing. It is very

noticeable that section 165 differs sharply from

Section 93 in the absence of a power to conduct,without

73
a search warrant, a general search or inspection. This

section is meant to 'be used in cases where a search

warrant would be made use of in the ordinary course,but

lack of time renders it impolitic to use it.

if the section did apply,proof of the search might

be inadmissible for other reasons,but there would be nc.

necessity to call either of the witnesses to the search

74
having regard to the express terms of section 103. Where

it is allecred and proved that the articles were produced

75
bv the accused himself, this section does not apply.

Section 165 applies to a search by the District

Superintendent under the Jammu and Kashmir Gambling Act,7*

118 of 1977 Bj.krami but not to a search by a Prohibition

77
Officer under the Madras Prohibition Act 10 of 1937. It is

applicable to searches made by Excise Officer by virtue

78
cf section 18 of the Central Excise and Salt Act. The

section has no application to a search for persons souqht

 303

79
to be arrested in connection with a cognisable offence.

Even if the provisions of the Code ate made

applicable to a search under any other .Act# as under section

13 2(l3) of the Income Tax Act# 1961# the limitations

prescribed under this section are not necessarily

80
incorporated therein.

If in the exercise of the power or the performance

of the-official duty#improper or unlawful obstruction or

re si stence i s encounter ed, there is the right to use

reasonable means to remove the obstruction or overcome the

81
resistence.

In the matter of a search under section lt>5,the

82
Supreme Court in S_tr.tE.aiL-uShbn v- Rehrrtan has laid down

the following safeguards—

(i) the empowered officer must have .reasonable

grounds for believing that anything necessary

for the purpose of investigation into an-offence

( or where the search is in connection with the

liability to pay tait, for the purpose .of recovery

of tax) may be found in any place?

(ii) He must be of the opinion that such thing cannot

b.e otherwise, got without undue delay.

79, £actolh.?Jl^S.jJ3gh. v.Ifapjsrrv; A. I.R.194 2 Pat 281 at p.28 2

80 I.T.O. v. Seth Bros. A.I.R.1970 S.C. 29 2 at P.297

81 . Matajoct Bubev v.fUC^Shasi A.I.R. 1956 S.C.44.

82. Snojia note 19
 304

(iii) ho must record in writing the arounds of his

belief? and

(iv) he must speed £•'’• in such writing so £?r ns Possible

the thing for which the search is made.

Regard being had to the remil-^rity of official acts, the

Court is entitled to presume th-t the sub-inspector must

have taken the necessarv precautions before taking the

search. If no auesti "m was put to him as to whether he had

taken the necessary or ecmrtions, the court cannot assume

83
an-”- fact against the nr os ecu hi on.

If the intimation w"M ch was sent to the Sub-

Divisional Magistrate and the terms in which the

communication was sent establish that the police officer

complied with the provisions of this section#

84
tn ~t should h.e enough.
3.5
(<

ihs._naara.at Jla.cd_aiK.a.ts___
Sub-section (5) to Section 1.65 of the Code of

Criminal Procedure requires copies of the records made

under Sections l65(1) and (3) to be sent forthwith to the

nearest Magistrate empower ed to take cognisance of the

offence. Ibis provision provides an extra-safeguard to

Drotect individuals arminst general or roving search.

83. GqpI v. State of 7.P. 1970 S.C.C.(Cr) 304

84 Ram Karan v. State of Bihar 1971 Bih. L.J.R.493

 305

For instance,where a police officer intends to search

a house for stolen motor-cycle or a scooter and has

specified it in writing beforehand,he can hardly be

in a position to claim any legal authority to open and

search the suit cases in the house since these vehicles cannot

be concealed in a suit case. 'The safeguard consists in that

the search,when the record is sent forthwith to the

magistrate,would be in the knowledge of the magi strata,who,

if considered it necessary,might even be present at the

place of search and see that the search is made in

85
accordance with law®

Although the words used in the sub-section are

wshall forthwith be sent? the Delhi High Court has pointed

out that the provision has to be regarded as directory and

86
not mandatory.

It is quite possible that there may be a situation

in which,for reasons beyond his control,the

police officer may not be able to send the record

forthwith to the nearest Magistrate. Even in such

a case,the search would become bad in lav/,if the

provision is regarded as mandatory,and the entire

puroose of conferring the power to search upon the

87
police officer bv section 165 would be defeated.

85. Lai Me a. v. Emperor A. I. T. 19 25 Cal. 66 3

86. Fedder.s-LLQiM.-C.grp.®. v. B. «.Lali5tou^Jia£a^Q-^W£ins:,A.1.8.

1969 Delhi 26 at p.4l, 4 2®

87 Ibi* d
 306

The safeguard thus provided i s an important and

valuable safeguard/and the re^uirenent in the sub-section

should be fulfilled by the Police Officer. If he omits to

send the record made under sub-section (l) and (3) forthwith

to the nearest magi strate, the search would not be one

In accordance with the orovisions of the Code and would/

88
therefore/ be irregular in law. The search would be

irregular even if the copy of the record prepared under

sub-section (3) is sent to the magi str ate/but after

89
considerable delay,when the search had already been made.

Where a police officer omitted to send copies of

the record prepared by him before the search to the

nearest magi str ate, conviction for resisting the noli ce

90
from conducting the search was set aside

In the case of a search by a. Prohibition Officer

under the Madras Prohibition Act, it is section 29 of that

Act and not this section that applies, and there is no

obligation on the Prohibition Officer to send the records

91
to the magistrate.

Prom the mere fact that the search, list and the

requisition made at the police station alone have been

oroduced it cannot be presumed that there has been

92
non-compliance with the provisions of the law. Where

Mahazar itself-and articl-es- recovered were forwarded to

|

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 307

the court two months after the search, it was held that
93
there was contravention of the 'sub-section(5) . The

provision of sub-section(5) regarding the sending of

seizure lists to the magistrate immediate!v after they

94
were prepared is mandatory#

(e) B.er>ut...3..tiQr)..Qf-rsuhardlnate.

EoZJtL&JBffiser___
Section 165(3) refers to a case where the officer

is himself unable to .conduct the search and deputes

somebody else to do so. It has no application to a case

in which the officer in the process of conducting that

search himself has a part of it actually done under his

own direction and in his own presence bv one of his

95
subordinates. -Sub-section (2) directs that the officer

referred to in sub-section(i) shall, if practicable, (

conduct the search in person. But, in the event of it.'not

f

being practicable for him to do so,provision is made /

in sub-section(3) for him to delegate his authority ■

to a subordinate. Here again,the Legislature insists

on certain preliminary steps being taken. In the first

place,the officer is required to record in writing the

reasons why it is necessary for him to delegate his duty.

Secondly, he must deliver to the subordinate officer to

whom he delegates his authority an order in writing to

this effect. Thirdly,the written authority delivered

to the -subordinate who ts -actual-lv -to- conduct the search

93 State of Key la v. Nar ay an an.... 196 2 (Keg. L.T .449 ~ at p.465

94. State v.Easildeb Sanmtil. 23 Cut.L.T.449 at 465
95 Snp_er_Qr v.Oar shan; Singh f A -1. R, 1Q 41 Lahore 297 at p.298
 308
must specify the place to be searched# and so far as

possible# the thing for which search is to be made. The

sub-section concludes with these words M and such

subordinate officer may,therefore# search for such

thing in such place.’i# These words mean that when a

subordinate officer is instructed to carry out a search,

which it is not practicable for the superior officer to

conduct,he is to search only for the thing which he

is instructed to search 6-33>9 for, and that he is to

search for it only in the place specified in his

96
authority. If the provisions of sub-section (3) are

not ccfrvolied with# the search will be unauthorised,

- - 97
In Queen v, Narain the conviction of the accused ,

under section 143 and 353#I.P.C„, for resisting search,

was quashed on the ground that the subordinate police

officer conducting the search was not empowered by an

order in writing,

A subordinate police officer is not empowered#

without a warrant# to enter 3. house in search of property,

though he may certainly do so in search of a person

who is charcred with having committed an offence for

98
which he is liable to be arrested without a warrant.

96. R-'am Parves Ahi r v. Ifaperor-A.I.R. 1944 Pat. 228 at p.230

97. 7 N.V7.P.H.C.R. 209

98. Mir Shah Nawaj Khan v. Bnperor 16 Cr.L.J. 15

 303

If a constable goes for search without any written

authority,he does not under sub-section (3) of section 165,

lawfully exercise the power of a public servant. To such

99
a case section 99,I.P.C., has no 'application.

(f) Search must be caD-dncted-by. .the

. . -..... 100
:....... ........../ -

In Venkataona Naidu v. King-Bnoeror. an Inpppector

acting under section 165 seated himself outside the house

of the accused and sent'a constable into the house to

conduct the search. The accused asked the constable

for a list of the’ articles he had cane to search for

and when none was produced he objected to the search for

being carried out by the constable and ousted him out,

' '.................... 1
It was held, di stingui shin g 'Queen-Empress v.Pukot Ko.tu that

the accused'could not be convicted under section 353,I.P.C.

The Inspector himself should have personally conducted

the search and he was not justified in sitting outside

and directing a subordinate to search without giving a

written order specifying the articles to be searched for.

This ruling was dissented from in Satagopal a_Charln v.

2
Setrughna Sahara and it was held that all that was

intended was that the.officer should be present on the spot

99. Tndu. Mandal v.E.uo-ar,cir 6 Cr.L.J. 439

100 6 Cr.L.J. 105

1. I.L.Fc. 19 Mad. 349

2. 13 Cr.L.J.763
 310

and exercise a general supervision over the search

in contradistinction to the cases where he is

unable to go to the spot and# therefore#depute a

subordinate by a written order to conduct the search

in his place.

(g)

'The provisions of section 1^5 of Cr.P.C. may be

applicable to searches under other Acts,depending upon

the statutory provisions governing such searches.

The provisions of this section apply to searches

under section 41 (2) of the Madras General Sales Tax Act

3'
1959.

Section 5 of the Public Garbling Act will prevail

over the general provisions of the Code relating to

searches. The provisions contained in this section will

not# therefore^ be applicable to a. search under section

4
5 of the afore-said Act*

The search under Section 105(2) of the Customs Act,

1962, is however#carried out under different circumstances.

The condition under this section that the reasons for

believing the facts mentioned in Section 1S5(l) must be

recorded to enable the police officer to make a search

urgently when the search warrants cannot be obtained

cannot be invoked in a search under Section 105(2) of the

5
Customs Act, 196 2.

3.
664.... ■
4. IDevi Run v. State ft.I.R.1967 H.P.18
5. Gord Krl.sh.arL A0.aaJLw.al v.
A.X.P. 1967 S.C. 1298
 311

Offence under the Forward Contracts (Regulation)

Act# 1952 being cognigable offences and the provisions of the

Code of Criminal Procedure having been applied to searches

under the afore-said Act under section 22-A(2) , so far as

may be#the provisions of the section will be available to

the police to make a search. The insertion of section

22-A does not exclude the applicability of the Criminal

Procedure Code to the investigation of offences under the

Forward Contracts (Regulation) /Act# 1952. If the seizure of

documents had been made under section 165 of the Criminal

Procedure Code#then the special rules of evidence enacted

in section 22-B of the said Act are not applicable for

6
proving the offences under that Act. In other words# the

presumption would not arise and the prosecution would have

to prove the documents according to the ordinary rule of

evidence. Forward Contract ( Regulation) Act# 1952 as

emended by Act 62 of I960 prescribes twin procedures for

investigation# search and seizure# by inserting sections

22—A and 22-B in the Act. A special rule of investigation

has been provided under section 22-B by raising of a

presumption as a result of which the burden which ordinarily

lies on the prosecution has been shifted to the defence.

Under section 22-A(l) a special procedure of authorisation

by a magistrate has been prescribed and a special credence

is to be given to the books of account and documents

seized from any place in section 22-B(i) pursuant to the

6. State of MahaTashtra V.Jayanfcl Lai A.I.R. 1984 S.C.612

 312

Particular procedure prescribed# 1 eads to the conclusion

that the benefit of section 22-3 of the Act is confined

to books of account and documents which have been seized

pursuant to a warrant authorising a police officer not

below the rank of sub inspector as prescribed in

section 22-A( l) . In order to have the benefit of section

22-B the prosecution must carry on the search and seizure

of the books of account and documents in the manner

prescribed under section 22-A(l) when investigation has been

carried out under the provisions of the Code of Criminal

Procedure by following section 1^5 of the Code the

presumption would not arise and the prosecution will have

to prove documents according to the ordinary rule of

evidence. Thus two separate positions arise depending upon

whether investigation is conducted under the Act or under

the Criminal Procedure Code.

Ci) Sear ches binder. Foreign -Exchange

Regal atl9,n, Act# 19.7.2

Foreign Exchange Regulation Act section 37 confers

power on any officer of enforcement not below the rank

of Assistant Director of Enforcement to search premises.

Such power can be exercised if the officer has reason to

believe that any document which, in his opinion,will be

useful for or relevant to, in investigation or proceedings

under the Act, are secreted in any place* Section 37(2)

provides that "the provisions of the Code relating to

searches, shall, so far as may be, apply to searches directed

under section 37(l)Reading the two sections together

 313

it merely means that the methodology prescribed for

carrying out the search provided in section 165 of the

Code of Criminal Procedure has to be generally followed.

In v, atLrgctor- Bnforeanent
............... r-7
F,S.R...and, others it has been held that the

expression “so far as may be" has always been construed

to mean that those provisions may be generally followed

to the extent possible. If section 165(1) was to be

incorporated by pen and ink as sub-section (2) of

section 37, the legislative draftsmanship will leave

no room for doubt by providing that the provisions of the

Code of Criminal Procedure relating to searches shall

apply to the searches directed or ordered under section

37(l) except that the power will be exercised by the

Birector of Enforcement or other officer exercising his

power and he will be substituted in place of the

magistrate. The provisions of sub-section( 2) of section

37 have not been cast in any such language. It merely

provides that the search may be carried out according to

the method prescribed in section 165(l). If the duty

to record reasons which furnishes ground for entertaining

a reasonable belief were to be recorded in advance,the

same could have been incorporated in section 37(1) ,

otherwise a simple one line section would have been

sufficient that all searches as required for the purpose

of this Act shall be carried in the manner prescribed in

7. Dr. Par-tan Singh v.Plrector__of_JEnfprx:^nenfc-J,.era_and

others A.I.P.1985 S.C.989
 314

section 165 of the Code bf the officer to be set out

in the section. In order to give full meaning to the

expression" so far as may be" sub-section (2) of 1

section 37 should.be interpreted to mean particularly

the procedure relating to search as enacted under section

165 shall be followed. But if a deviation becomes |

necessary to carry out the purposes of the Act in which

section 37 (l) is incorpor ated#it would be permissible

i

except that when challenged before a court of law/

Justification will have to be offered for the deviation.

So section 165(l) of the Criminal Procedure Code is

not incorporated by pen and ink in section 37(2) of

Foreign Exchange Regulation Act# 1973. j

The Immoral Traffic ( Prevention) Act# 1956 as

emended by Act No.44 of 1986 provides a provision for

search of premises without a warrant by the special

police officer or traffic king police officer under

section 15 of the said Act which runs as under*

8. 15 (l) Notwithstanding anything contained

in any order law for the time being in force,
whenever the special police officer ( or the
' trafficking police officer,as the case may be#)
has reasonable grounds for believing that
an offence punishable under this Act has been
or is being committed in respect of a ( person)
living in any premises#and that search of tlie
pr anises with warrant cannot be made without
undue del ay# such officer may# after recording
the ground of his belief#enter and search
such pr anises without a warrant.

(2) Before making a search under sub-ection( l) #

the special police officer ( or the trafficking
police officer# as the case may be) # shall call
upon two or more respectable inhabitants ( at
least one of whom shall be a woman) of the ;
locality in which the place to be searched
is situate#to attend and witness the search;
and may issue an order in writing to them
or any of than so to do.
(provided that the requiranent as to the
respectable inhabitants being from the locality
in which the place to be searched is situate
shall not apply to a woman required to attend
and witness the search) •

(3) Any person who,without reasonable cause#

refuses or neglects, to attend and witness a search
under this section,when called upon to do so
by an order in writing delivered or tendered
to him, shall be deemed to have committed
an offence under section 187 of the Indian
Penal Code (45 of I960).

(4) The special police officer or the

trafficking police officer, as the case may be,
entering any premises under sub-section( l)
shall be entitled to remove therefrom all the
person found therein)

(5) The special police officer ( or the

trafficking police officer,as the case may be,
after removing the ( person) under sub-section(4)
shall -forthwith produce him before the
appropriate magistrate.

(5-A) Any person who is produced before a

magistrate under sub-section(5), shall be
exanined by a registered medical practitioner
for the purposes of determination of the age
of such person or for the detection of any
injuries as a result of sexual abuse or for
the presence of any sexually transmitted disease.

Explanation.— In this sub-section "registered

medical practitioner" has the sane meaning as
in the Indian Medical Council Act, 1956.

( 6) The special police officer ( or the

Trafficking police officer,as the case may be,)
and other person taking part in, or attending
and witnessing a search shall not be liable for
any civil or criminal proceeding against than in
connection with, or for the purpose of the search.

(6_a) The special police officer or the

Trafficking police officer, as the case may be,
making a search under this section shall be
accompanied by at least two women police
officers, and where any woman or girl removed
under sub-section(4) is required to be
interrogated,it shall be done by a woman police
officer and if no woman police officer is
 316 .

available#the interrogation shall be done only in

the presence of a lady member of a recognised welfare
institution or organisation. Explanation.-For the
purposes of this sub-section and section 17-A
"recognised welfare institution or organisation" •
means such institution or organisation as may be
recognised in this behalf by the State Government) .

(7) The provisions of the Code of Criminal Procedure#

, 1973 (2 of 1974) # shall, so far as may be# apply to
any search made under the authority of a warrant
issued under section 94 of the said Code). This
section is in pari-materia with section 165 of the
Criminal Procedure Code# 1973.8
.... ......... ■- 9
In laLRadha V. State of Gujarat it has been

held that the provisions of search contained in section

165 of the bode of Criminal Procedure are applicable to

the search conducted under section 15 of the Immoral

Traffick ( Prevention) Act. If search is in contravention

of section 165 of the Criminal Procedure Code#the trial

is not rendered illegal unless the accused has been

prejudiced. This is irregularity which is curable under

section 537,Cr.P.C. Recording of reasons under section

165#cr.P.C..does not confer on the officer jurisdiction

to make search though it is a necessary condition for doing

so. The jurisdiction or power to make search is conferred

by the statute and is not derived from the recording of

reasons. It cannot be held that if a search is not carried

out strictly with the provisions of that section the

trial is rendered illegal.

8. C 1972S.C.C. (Cri) 470.

9. A.I.R.1970 S.C.1396
 317

Gold Control Act# 1968 empowers the Gold Control

Officer under section 58 of the Act#power of search and

10
seizure on suspicion only.

The Central Excise and Salt Act# 1956 enables

authorised officer to make search only for investigation

of an offence. By virtue of section 18 of the Central Excise

and Salt Act the provisions of section l6g,Cr«P.C. must be

followed for any search under rule 201 of the Central Excise

and Sales Tax Act. Recording of reasons under section 165#

Cr.P.C. prior to search is obligatory and ilon-ccmpliance

of the provisions makes searches Illegal. The search made

11 ............................... ............... ..................... -......................................

in case State of Rajasthan v.R^2a§B in contravention of the

provisions of section 165 of the Code was held illegal

and the appeal of the State was dismissed. Karnatka Excise

Act 1966 also follows the provisions of section 165 of the

Code of Criminal Procedure and the inspector who searched

the car of the appellant in K*L..gufrhayy,ri,..iu

■ 12
Karnatka. had not made any record of the grounds of his

reasonable belief that an offence under the Act was being

committed before proceeding to search the car. This#

therefore# renders the entire search without jurisdiction

and as a logical corollary vitiates the conviction.

Jail Manual under rule 55 2-A provides for a search

of the person who wants to interview a prisoner. A person

who desires to interview a prisoner may have to subject

----- M 1 II M 111 TIT II in mr-irTI-TT'— lll-|— T~rmi ■- I ITT' — 1 -■ — " ' —————~■ — ..I—

10. Badri Prasad v. .Jfcciga»&.1 »R« 1^71

•« p I 1 *70

11. A.I.R.1960 S.C. 210

12 . A.I.R.1979 S.C.711.
 318

himself or herself to the search in accordance with the

rules and regulations governing the interview. In case

such a person is a female she can be searched only by a

■ 13..
matron or a female warder.

The Narcotic Brugs and Psychotropic Substances Act,

1985,provides a special procedure for issue of warrant

of arrest and authorization for searches and investigation

of the offences under the Act by the State Government

in this behalf. The relevant provisions are contained in

sections 41,42,43,49,50 and 51 of the Act which are

given belows

Pqw er_-ta.„laaaa.-!^x..aiit„-aiid„autlioxi s ation

S.4l(l) A Metropolitan Magistrate or a Magistrate

of the first class or any Magistrate of second
class specially empowered by the State Government
in this behalf,may issue a warrant for the arrest
of any person whom he has reason to believe to
have committed any offence punishable under
Chapter IV,or for the search,whether by day
or, by night,of any building,conveyance or
place in which he has reason to believe any
narcotic drug or psychotropic substance in
respect of which an offence punishable under
Chapter IV has been committed or any document
or other article which may furnish evidence
of the commission of such offence is kept
or concealed.

(2) Any such officer of gazetted rank of the

departments of central excise,narcotics,customs,
revenue intelligence or any other department
of the Central Government or of the Border
Security Force as is empowered in this behalf
by general or special order by the Central
Government,or any such officer of the revenue,
drugs control,excise,police or any other
department of a State Government as is empowered.

13. Smt^rahba-Butt v.TJulajL-af-iMla,A. I.R. 1982 S.C.6

 313

in this behalf by general or special order of the

State Government# if he has reason to believe from
personal knowledge or information given by
any person and taken in writing that any person
has committed an offence punishable under Chapter
IV or that any narcotic drug# or psychotropic
substance in respect of which any offence
punishable under Chapter IV has been committed
or any document or other article which may
furnish evidence of the commission of such
offence has been kept or concealed in any
building#conveyance or place#may authorise
any officer subordinate to him but superior
in rank to a peon# sepoy# or a constable,to
arrest such a person or search a building#conveyance
or place whether by day or by night or himself
arrest a person or search a building#conveyance or
place.

(3) The officer to whom a warrant under sub-section

(l). is address and the officer who authorised the
arrest or search or the officer who is so
authorised under sub-section (25 shall have
all the powers of an officer acting under section 4 2.

Power of

without .warrant
®«^2(l) Any such officer ( being an officer
superior in rank to a peon# sepoy or constable)
of the departments of central excise#narcotics,
customs#revenue intelligence or any other
department of the Central Government or of the
Border Security Force as is empowered in this
behalf by general or special order by the
Central Government# or any such officer (being
an officer superior in rank to a peon# sepoy or
constable) of the revenue#drugs control#excise#
police or any other department of a State Government
as is empowered in this behalf by general or
special order of the State Government# if he has
reason to believe from personal knowledge or
information given by any person and taken down
in writing#that any narcotic drug# or psychotropic
substance#in respect of which an offence punishable
under Chapter IV has been committed# or any
document or other article which may furnish evidence
of the commission of such, offence is kept or
concealed in any bull ding# conveyance or enclosed
piace#.may#between sunrise and sunset#-
(a) enter into and search any such building#
conveyance or place?
(b) in case of resistance#break open any
door and remove any obstacle to such entry?
 320

.(c) seize such drug or substance and all

ipaj:erials used in the manufacture thereof
.and any. other article and any animal or
conveyance which he has reason to believe
to be liable to confiscation under this Act and
any document or other article which he has
reason to believe may furnish evidence of the.
commission of any offence punishable under
Chapter IV relating to such drug or substance?
and

Cd) detain and search, and,if he thinks proper,

arrest any person whom he has reason to believe
to have committed any offence punishable under
Chapter IV relating to such drug or substance?

provided that if such officer has reason to

believe that a search warrant or authorisation
cannot be obtained without affording opportunity
for the concealment of evidence or facility for
the escape of ..an offender,he may enter and search
such building,conveyance or enclosed place at any
time between unset and sunrise after recording
the grounds of his belief.

(2) Where an officer takes down any

information in writing under sub-section(l) or
records.grounds for his. belief under the proviso
thereto,he shall forthwith send a copy thereof
to his immediate officer superior.

pQMar. _q£ , ..seiguxa-^id^xe^iiJ>n„Public-Jiiac£g

S.43? Any officer of any of ..the department
mentioned in Section 42 may--
(a) seize,in any public place or in
transit, any narcotic drug or psychotropic
substance in respect of which he has
reason to believe an offence punishable
under Chapter IV has been committed, and,
along with such drug or substance, any
animal or conveyance or article liable to
confiscation under this Act, any document
or other article which he has reason to
believe may furnish evidence of the
cornmission of an offence punishable under
Chapter IV relating to such drug or substance*

(b) detain and search any person whom he has

reason to believe to have committed an
offence punishable under Chapter IV, and,
if such person has any narcotic drug or
psychotropic substance in his possession and
 321

such possession appears to him to be

unlawful# arrest him and any other person
in his company.

Explanation.— For the purposes of this section#

the expression “public place" includes any
public conveyance#hotel# shop# or other place
intended for use by#or accessible to#the public.

£QMe^ta.atQP.-aQia.. search.conveyance
S.49? . Any Officer authorised under Section
42#may#if he has reason to suspect that any
animal or conveyance is# or is about to
be#used for the transport of any narcotic
drug or psychotropic substance, in respect
of which he suspects, that any provision
of this Act has been# or is being#or is
about to be#contravened at any time stop
such animal or conveyance# or# in the case
of any aircar ft# compel it to land and—
(a) rummage and search the conveyance
, or part thereof?
Cb) examine and search any goods on the
... , animal or in the conveyance#
(c) if it becomes necessary to stop the
animal or the conveyance,he may use
all lawful means for stopping it# and
where such means fail#the animal or
the conveyance may be fired upon.
Conditions .under which.. search of persons

shall be conducted
SeSO(l) When any officer duly authorised
under,Section 42 is about to search any
person under the provisions of Section 41#
Section 42 or Section 43 he shall# if such
person so requires,take such person
without unnecessary delay to the nearest
Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest
Magistrate.

(2) If such requisition is made,the

officer may detain the person until he can
bring him before the Gazetted Officer or
the Magistrate referred to in sub-section(l) .
(3) The Gazetted Officer or the Magistrate
before whom any such person is brought shall,if
he sees no reasonable ground for search,
 322

forthwith discharge the person but otherwise shall

direct that search be made.
(4) No female shall be searched by anyone
except a female.

3e .ofJXtmiaal.

S . 51- The provisions of the Code of Criminal

Procedure# 1973 (2 of 1974) shall apply# in so far as
they are not inconsistent with the provisions of this
Act#to all warrants issued and arrests# searches
and seizures made under this Act.
....................... ............................... 14-
In State of Punjab v. Angrez Singh, a Division

Bench of the Punjab and Haryana High Court has held that

when the prosecution has failed to prove that the Head

Constable was authorised to conduct investigation under

Section 42 of the Narcotic Drugs and Psychotropic

Substances Act#so#the judgment of acquittal passed by

the trial court was affirmed.

................... 15
In n&afcfi jaf-Eunlafr v. SuEjant. ..Singh.again the
Division Bench of the Punjab and Haryana High Court has

held that Section 50 of the Narcotic Drugs and Psychotropic

Substances Act# 1985 is mandatory and the failure to comply

with the mandatory provisions vitiates the trial. Their

Lordship observed* -

In dealing with the provisions of Section 50 of

the Act#it cannot but be observed that# it would be

rendering them negatory if the safeguard provided thereby

to the person apprehehended#to be searched in the presence

of a gazetted officer or magistrate can be brushed aside on

14. 1992(2) Simla Law Journal 1831

15. 199 2 (2) Simla Lav/ Journal 2208

 323

merely the bald statement of a police officer,that such

offer was declined by him. As is well known#the

legislature has always been somewhat wary of accepting

statements made to the police, as would be apparent from

the provisions of Section 162 of the Code of Criminal

Procedure,whereby, statements made by an accused to the

police in the course of investigation#are made inadmissible

and if such statement is a confession,it is also hit by

section 25 of the Evidence Act.

16
In Sudarsh an. Kumar.* s case it has no doubt been

suggested that such offer should be made before two

reliable and independent witnesses,but with respect it

would be appropriate and more in consonance with the

interests of justice that as a rule of general practice,

the person apprehended should be taken before gazetted

officer or a magistrate and searched in his presence.

The stringent minimum punishment prescribed by the Act

clearly renders such a course imperative. Search

otherwise than before a gazetted officer or Magistrate

should,therefore, be the exception and that too for sound

and convincing reasons founded upon reliable material

on record. The onus of showing that the person to be

searched declined such option is upon the prosecution.

Seen in this light,there can be no escape from the

conclusion that violation of the provisions of section 50

of the Act,in case of the appel 1 ant-fomrit Singh, stands

17
writ large”.

16. 1989 (!) Ch.L.R. 240

17. Ibid, at pp. 2210, 2211
 324

Moto3LJ^ixJLfiJE^ciul9aa«
Under Section 206 of the Motor Vehicle Act any police

officer or other person authorised in this behalf by the

State Government may seize if he has reason to believe

that there is any false document pertaining to motor

vehicle# and also the driving licence of the driver of

the motor vehicle charged with any offence under the Act#

if the officer has reasons to believe that such driver

shall abscond or othervd.se avoid service of summons? in

exchange for ac)cnowl edgem ent of the seizure of the licence.

The seized licence has to be forwarded to the court taking

cognizance of the offence, Acknowledgement of seizure of

the licence authorises the driver to drive the vehicle

till the licence is returned to him or until the date

specified in the licence. This period may be extended if#

for no fault of the driver#the licence is not returned to

him within this period,

wifcbg&fc

The authorised police officer 6r other person is

empowered to seize a vehicle under section 207 of the

Motor Vehicle Act which —(l) has been or is being used

in contravention of section 3 and 4 i.e. driving without

a valid licence or (2) has been or is being used without

a certificate of registration as required by section 39#

or (3) has been or is being used without a permit as

 325

required by section 66(1), or (4) has been or is

being used in contravention of condition of the permit

relating to the route,area in which and the purpose of

which the vehicle may be used.

.................................... ........................ 18
In v. the

Supreme Court has observed*

A precondition, to the seizure and detention of

the vehicle is that the police officer or
authorised person must have reason to believe
that one of the other of the offences specified,
punishable as we have seen under Section 123 ( now
Section IS2),has been or is being committed,
Whenever property involved in the commission of
an offence is seized,the seizure is generally
expected to serve a manifold purposes such as
to prevent repetition of the offence, to use the
thing seized as material evidence in the
prosecution,to preserve the property so as to
enable the court to pass appropriate orders
for its disposal by way of destruction,
confiscation,or delivery to any person claiming
to be entitled to possession thereof or
otherwise. There is no reason to assume that
the seizure under section 129-A ( now section 207)
is any different and is not to serve any of these
purposes or any purpose at all. 19

Where a truck is seized on the ground of plying without

a permit the proper course for the magistrate is to

direct the owner to approach the authority concerned

for renewal of the permit and that authority can also call
20
for the payment of dues by way of taxes and penalties.

Seizure of the vehicle for contravention of a

condition of the permit not relating to the route or area

or purpose of operation of the vehicle is not covered by

section 207.

18. A.I.R.1983 S.C.1225

19. Ibid 1228

^ QdivW VJ- XJfcC
 326

Where the vendee of a vehicle is granted permission

to hold the permit that had been granted earlier to the

vendor,the vdiicle cannot be seized under this section

even though there be no actual endorsenent of the transfer

entered in the permit. Seizure of the vehicle is unauthoris&

and illegal if the accused has not violated section 66(1) .

A violation of the section 66(1) takes place only when the

vehicle which is being driven is not covered by the permit.

It is not necessary that the person running the vehicle

21
should be the holder of the permit.

Where a vehicle has been or is being used in

contravention of the provisions of section 3 or 4 or

without a permit the authorised police officer or person

is given an option by the proviso to seize the certificate

of registration instead of the vehicle. This action

will disable the plying of the vehicle.

Under sub-section (2) of section 207 the owner

or the person in charge of the vehicle which has been

seized and detained may apply to the transport authority

or authorised person for release of the vehicle. He

must submit the relevant documents such as?

(a) the driving licence, or

(b) the certificate of age, or

Cc) the certificate of registration, or

(d) the permit

whichever is required and for want of which the vehicle

21 K.N.S.Pillai v.T.Paul A.I.R.1953 T.C.551

 327
was seized and detained. After verification of the document,

the vehicle may be released subject to such conditions as

may be imposed.

(h) Reasons prior ,to search, to, b.R

EggoEflefll..)^03d.aiimj^aifi!thec
mandatory

The police officer is bound to record in writing the

grounds of his belief as to the necessity for search, and

specify clearly the article or articles for which the

22
search is to be made. The recording of the reasons is an

important step in the matter of search, and to ignore it

is to ignore the material part of the provisions governing

searches. If this step is ignored,the search would be a

23
search in contravention of the provisions of the Code. The

requirenents of sub-section( l) of section 165 are clearly

intended to restrain a police officer from initiating

24
or conducting anything in the nature of a general search.

The different High Courts have expressed conflicting

views as to the mandatory or directory nature of the

provisions and the effect of the non-compliance with the same

The Allahabad High Court has taken the view that the failure

to record reasons is not a material error so as to vitiate

25
the conviction, if the circumstances point to the guilt but

where the search was conducted in contravention of the

provisions of sub-section(l) and accused assaulted the

22. Sob an Lai v. .lnpjs&ar A.I.R.1933 Audh 305

23 5£ate_of- Raj as than v.Rghmafi A. I.R.i960 S.C.210
24. Ram Parves v. InafilQl A.I.R.1944 Pat. 228
25. All Ahmed Khan. v.^UEfiECJ: A.I.R. 1924 All. 214
 328

Sub Inspector and the injuries caused proved fatal# it

was held that the accused has the right of self-defence

and could not have said to have voluntarily caused death

26
and was entitled to acquittal. Bombay High Court has taken

the view that the search carried out in contravention of

sub-section (l) ? it may be an irregularity#but it will

27
not vitiate the action taken in the absence of malafides.

Calcutta High Court is of the view that the failure to

record reasons under section 165(l) of the Code of Criminal

Procedure relating to the search is not illegality which

28
can be urged as a ground for acquittal. Delhi High Court

has held that the provisions of the section are only

29
directorv and not mandatory. The Lahore High Court had
30
taken the view in Malnua^^lngfo-V.GhuXasuMoM that the
nrovisions of the sub-section are directory and not
31
mandatory#but in annemE v.the provision has been

held to be mandatory and not directory#though the position

is eccepted that the safeguards may be carried out as

nearly as the/ can be in the exigencies and the circumstance

of each case. Patna High Court has held in ffopl ..Malita v.

32
Emperor that where a police officer without complying

26. Emperor v. P.ar. am -Singh. A.I.R. 19 2$ All. 147

27. PraVafih Cotton Mllla_v. EULEanCManl 1971 Bom.L.R. 200

28. Indu .Bhushan v.JSjiafcjaJ&.I**** 1955 Cal. 129

29. # AIR
1969 Delhi 26 at p.37
30. A.I.R. 1939 Lah. 280
31. A.I.R, 1946 Lahore 456
3 2. A.I.R. 1952 Pat.66
 329

with the requirements of the section, attempted to search#

he cannot be said to be acting in good faith within the

meaning of section 5 2 of the Indian Penal Code# An accused

would be justified in pushing him back in order to prevent

a search#which is not in accordance with law. The Punjab

High Court is of the view that the provisions of the

section are mandatory and must be carried out fully or as

nearly as they can be# in the exigencies and circumstances

33 .
of the case. The recording of reasons is an important

subject in the matter of search and to ignore it is to

ignore the material part of the provisions governing

searches#the search in such a case will be a search in

34
contravention of the provisions of the Code*

The First draft of the Haryana Police rules 1977

Vol.III. in rule 25.23 describes the procedure of search

as follows•
25. 23 (l) The rules regarding searches by police

officers are contained in sections 1&5 and l66,Code of

Criminal Procedure. Notices of search under section 1^5#

Criminal Procedure Code# summons to persons to witness search

under section 100(4) Criminal Procedure Code# and search

lists under section 100(5) #Criminal Procedure Code# shall

be prepared in forms 25.23 (l) (a) (b) and (c) #respectively.

33. Cul7.ar Sindh v. State (1962) 64 Punj .L.R.403

34. Pram.Chand v.&tafce (1964) 66 Punj.L.R.569

 330

(2) Kn officer in charge of a police station

receiving a requisition to search,under Section 1^6 Code

of Criminal Procedure,or other law applicable, shall

comply without unnecessary delay and shall take all

necessary precautions to ensure a successful search.

Sk police officer making such requisition may attend

personally and assist in such search or may send one or

more of his subordinates for that purpose.

(3) Gazetted officers supervising investigations

and inspecting officers shall take disciplinary action

against investigating officers who carry out searches

under section 1^5,Code of Criminal Procedure,TArithout

35
sufficient justification. Rule 25.5 2(3) provides that

detailed lists of stolen property, or of property seized

in the course of a search, shall be entered in the first

case diary submitted after the facts relating to such

property were reported to,or discovered by,the

investigation officer. Sub clause (4) of this rule further

provides that the fact that copies of the record prepared

under the provisions of section 1^5 or 166 Code of

Criminal Procedure,have been sent to the nearest

magistrate empowered to take cognizance of the offence

36
shall also be recorded.

Himachal Pradesh High Court has held in B.S.Thind v.

...................37
StahP Of H.P. and another, that non-compliance of sub-sect!01

35. First Draft of Haryana Police Rules 1977 Vol.III

at p.233.
36. Ibid at p.259
37. i.993 (l) Simla Lav/ Journal 100.
 331

-Cl) and (5) of section l65,Cr.P.C. do not render the entry

in the searched premises as illegal. In this case the

reasons for the search under section 1^5(l) and (3) Cr.P.C.

were recorded in the zimnies (case diaries) and were not

prepared separately as envisaged in section lS5fCr.P.C.

These copies of the record prepared under section 165 (l)

and (3) of the Criminal Procedure Code is not only sent to

nearest magistrate empowered to take cognizance of the

offence but copies thereof are also supplied to owner

or occupier of the place searched# on his making

application to the magistrate as provided in section 165(5)

of the Code of Criminal Procedure. If such record forms

part of zimnies it cannot be made available to the owner/

occupier of the place searched who is an accused as zimnis

are privileged documents under section 172(3) Cr.P.C. with the

result the provisions of section 165(5) Cr.P C.* is rendered

nugatory and the valuable right to the owner/occupier of

the place searched who is an accused is lost. The court

held that this is merely an irregularity and entry of

Shri B.S.Thind in the searched premises does not amount

38
to trespass.

(i) ' iSaassiL-la.janatheK-ito lie a..Q££LcslLs

JaJtiLsdictdon under Section - 1.66.Cr.P.C.

Normally a police officer can make a search only

within his-own-jurisdiction. But section l66(i) provides

38. Ml
 332

that an officer-in-charge of a police station or a police

officer { not below the rank of a sub-in spec tor) making

an investigation,may require an officer-in-charge of

another police station to cause a search to be made in

any place, and under sub-section(3) of the sane section,

if the delay occasioned by requiring an officer-in-charge

of another police station to cause a search to be made

might result in the evidence of the commission of an

offence being concealed or destroyed,he may himself

search or cause to be searched any place in the limits

of another police station. If the police officer making the

search suspects that the help of the police officer of the

other police station would not be readily available there

would be justification for him to take the search himself

39
even outside his own jurisdiction.

(j) Effect of illegal search-On .seizure .

.and .cQnadjatiQn
The failure to comply with the provisions regulating

searches may cast doubt upon the bop a fldes of the officers

conducting the searches. But when once the evidence has

been believed,it is obviously no defence to say that the

evidence was obtained in an irregular manner. There is

nothing in the law which makes such evidence inadmissible.

While upholding the search conducted under section 132 of

the_ Income Tax Act,196i,a bench of five judges of the

39. Go-oi V.State of U-P.1970 S.C.C.(Cr.) 304.

 333
40
Supreme Court dealt with the question whether evidence

illegally obtained could be adult ted. The Court said it

could be admitted- and for this reliance was placed on a

41
Privy Council decision in Kurima v. The Queen 1955 &.c. 197.

The Supreme Court quoted with approval the following passage

from the said Privy Council decisions

The test to be applied# both in civil and

criminal cases#in considering whether evidence

is admissible is whether it is relevant to the

matters in issue. If it is, it is admissible and

the Court is not concerned with how it was

42
obtain®!*

It is not correct to say that where there has been

illegal search#evidence of either the finding of articles or

of circumstantial facts or of the witnesses making the

search is inadmissible. The mere illegality of the search

will not at all shut out in the way of making inadmissible

any evidence otherwise admissible. No doubt it is true

that where there has been illegal search it will be

reasonable to view with more than or dinar v caution the

43
evidence of those persons who have made the illegal search.

40. Jgaxjaa..
1974 S.C.348

41. Kg rum a v. The Queen 1955 A.C.197,

42. £nXLaXLJLstl v.
1974 3.C. 348 at p.362.

43. Legal■^emembran.cer--B®nxxal.J^UMg0-gii#.I^b-.Rjt-LlM2) Cal,

439 at p.444.

44. v. Hatwar Lai

A#I.R.1980 S.C.593,
 334

If the seizure is illegal,the seizure of the

44
articles Is not vitiated. In another case the Supreme

Court has held* "Assuming arguendo, that the search was

illegal,then also, it will not affect the validity of the

seizure and further investigation by the customs

45
authorities or the validity of the trial".

In v. State,.q,£ ,U.E. . the appellant was a

postman. He and his father were living in the sane house.

Certain undelivered postal articles were recovered from

an almirah in the house,the key of which was produced by

the father. The appellant,Radhakrishan was tried and

convicted of an offence under section 52 of the Post

Offices Act, for secreting postal articles. One of the

contentions raised on behalf of the appellant was that the

search and seizure was illegal inasmuch as it was in

contravention of the provisions of sections 103 and 165

of the Code of Criminal Procedure. MudholTear,J.spe?ki.ng

for the Court, repelled this contention, thus *

"So far as the alleged illegality of the search

is concern©!, it is sufficient to say that even
assuming that the search was illegal the seizure
of the articles is not vitiated. It may be that
where the provisions of Ss. 103 and 165,Code of
Criminal Procedure, are contravened the search
could be resisted by the person whose premises
are sought to be searched. It may also be that
because of the illegality of the search the
Court may be inclined to examine carefully the
evidence regarding the seizure. But beyond these
....... two consequences no further consequence ensues.

44 fit at c - Mah ar ashtr. a-V^

A. I.R . 1980 S.C.593

45 Ibid, at p.596
\ *£ \ °tkS S, C,
 335
..- — ...... 47
Again, in ghy.am M.. v. S.tate Of-Mai31is^P£Masb

Jaganmohan R eddy, J, delivering the opinion o£ the Bench,

held that even if the search is illegal being in

contravention with the requirsnents of section 1^5,Criminal

Procedure Code, 1898,that provision ceases to have any

application to the subsequent steps in the investigation.

■■ ../■ ' ■...... .......■ - - - - ■ 48
state, of Kerala v.Alasserry Mohammed, question

arose,whether the failure on the part of the Food Inspector

to comply strictly with the statutory provi sions,would

vitiate the trial and conviction of the respondent. The

0

Supreme Court answered this question in the negative, and

49
referred with approval to the decision in Stone v. Powell

wherein the Suprame Court of the United States of America

made a clear departure from its previous decision in the

application of the '’exclusionary rule' of evidence. The

prosecution in those cases relied upon the evidence of searcl

and seizure,which were said to be unconstitutional and unlaw:!

unlawful , Mr .Justice Powell, who delivered the leading

majority judgment,made these pertinent observations®

Upon examination,we c&nclude, in light

of the nature and purpose of the Fourth Amendment
exclusionary rule,that this view is unjustified.
We hold,therefore, that where the State has
provided an opportunity for full and fair
litigation of a Fourth Amendment claim, the
Constitution does not require that a State
prisoner be granted federal hahaas cqkpujs
relief on the ground that evidence obtained
in an unconstitutional search or seizure was
introduced at his trial. 50
In his concurring opinion,Chief Justice Burger

47. A.I.Ft. 1972 S.C.886.

48. A.I.R. 1978, S.C.933.
49 428 U.S.465 (1976)
50. Ibid.
 336

highlighted the injustice that often resulted from

application of the exclusionary rules. Said the

learned Chief Justice.

*To vindicate the continued existence

of this Judg-made rule* it is incumbent upon
those who seek its retention--and surely
its extension— to demonstrate that it
serves its declared deterrent purpose and
to show that the results outweigh the rule's heavy
costs to rational enforcement of the Criminal
Law. (See* e.g. milPV.gh v. lZnii^L&tat£S*5l
The burden rightly rests upon those who ask
society to ignore trustworthy eWdence of guilts*
at expense of setting obviously guilty criminals
free to ply their trade. 52

In United States of Jtoerica all evidence obtained

by law enforcement officer by searches and seizures in

violation of Fourth Amendment of American Constitution;

is inadmissible in evidence in federal as well as

■ 53
State Courts as held in Mapp v. Ohio. Subsequent Court

decisions have somehhat pinched back application of the

54
rule as in Stone v.Powell discussed above, or simply
55
refused to extend it further as indicated in Calandra and
56
Janis cases. It is also important to note that Mapp did not

bind the states to follow all interpretation of the

federal judiciary in the area of criminal procedure but

only those rulings which stemmed from Constitutional

guarantees. Still,for all of the Burger courts prunning

57
Mapp itself remains good law.

(1962) 315 F. 2d 241.

to tn m m m
if>> U> to i-»

JtaLS note m ^
367 U.S.,643 Cl96l)
428 U.S.465 (1976)
414 U.S.338 (1974) Use of illegally seized evidence
U1

no bar by grand jury.

428 U.S.433 (1976) Illegally seized evidence no bar
m

in civil cases.
57 Supra note
 337

(fc) Marr antlS5J5■■■search, of ■ aplace for seizing

false, weights. and, men snares

Section 153 of the Code of Criminal Procedure 1973

authorises any officer inchar ge of a police station without

a warrant within his local jurisdiction for the search of

a place where he has reasons to believe that there are in

such place any weights,measures or instruments for

weighing which are false and to seize them and further, to

tfive information of such seizure to the magistrate having

jurisdiction.

This pother of search and seizure in respect of false

weights and measures has been bestowed to an officer

incharge of a police station specifically and not to other

1 . ■—...58...
police officers as was held in Jgmerar v, Nanak Chand. In

this case information was given .to the Tehsildar by an

informer to. the effect that there short weights were

being commonly used and an enquiry was then made by the

Sub Inspector of Police under orders from the district

Magistrate and District Superintendent of Police. Section

153 of the Code specially authorises an inspection of

weights and measures by the officer, incharge of the

police station and to that extent there can be no.

59
objection to the procedure adopted* Because under section

58 A.I.R.1914 Lahore 42

59. Ihmatp.43
 338

36 of the Code of Criminal Procedure police officers

superior in rank to an officer incharge of a police

station may exercise the same powers,throughout the local

area to which they are appointed, as may be exercised .by

such officers within the limits of his station.

Section 100 of the Code of criminal Procedure

prescribes certain requirements which are to be

complied with in conducting the searches of the premises

which are as under*

S.100* Persons in charge of closed place to allow

search*-(l) Whenever any place liable to search
or inspection under this Chapter is closed, any
person residing in, or being in charge of,such
place, shall, on demand of the officer or other
person executing the warrant, and on production-
of the warrant,allow him free ingress thereto,
and afford all reasonable facilities for a search
therein. . .

(2) If ingress into such place cannot be so

obtained,the officer or other person executing
the warrant may proceed in the manner provided
by sub-section v 2) of Section 47,
(3) Where any person in or about such place
is reasonably suspected of concealing about his
person any article for which search should be
made, such person may be searched and if such
person is a woman,the search shall be made by
another woman with strict regard to decency.

(4) Before making a search under this

Chapter,the officer or other person about to make
it shall call upon two or more independent and
respectable inhabitants of the locality in which
the place, to be searched is situate or of any
other locality if no such inhabitants of the said
locality is available or is willing to be a
witness to the search,to attend an3 witness the
search and may issue an order in writing to then
or any of then so do do.

(5) The search shall be made in their presence

 339

and a list of all things seised in the course of such

search and of the places in which they are
respectively found shall be prepared by such officer
or other person and signed by such witnesses#but no
person witnessing a search under this section shall
be required to attend the Court as a witness of the
search unless specially summoned by it.

(6) The occupant of the place searched# or

some person in his behalf# shall# in every instance#
be permitted to attend during the search# and a copy
of the list prepared under this section# signed by the
said witnesses# shall be delivered to such occupant
or person.

(7) When any person is searched under sub-section

(3)# list of all things taken possession of shall be
prepar.ed# and a copy thereof shall be delivered to such
person.

(8) &ny person who#without reasonable cause#

refuses or neglects to. attend and witness a search
under this section#when called upon to do so by an
order in writing delivered or tendered to him# shall
be desned to have committed an offence under section
187 of the Indian Penal Code (45 of I860) .

The section has three important aspects*

(a) The occupant of a place liable to search is

required to give all reasonable facilities to the
persons authorised to conduct a search? (b) The
police and others authorised to search are armed with
necessary powers for the proper and effective
execution of the search? (c) Procedures have been
designed * to obtain as reliable evidence as possible
of the search and to exclude the possibility of any
concoction or malpractice of any kind".60

The provisions of the section apply to searches

under a warrant and as well as for a search without a
warrantunder section 165 of this Code as far as
possible.6i

60 Emnerar v. Balai Ghose &.I.R. 1930 Cal.141 at p. 143

61 Radha Kish an v. jState_of -ft. I.R. 1963 S.C.8 22

 340

They are not applicable to the seizure made in the

course of investigation under section 157,Cr.P.C.
In an investigation under section 157 the
recoveries could be proved even by the solitary
evidence of the Investigating Officer if his
evidence could otherwise be believed. The
evidence relating to ( such) recoveries is not
similar to that contemplated under section 103 of
the Criminal Procedure Code( of 1898) where searches
are required to be made in the presence of two or
more inhabitants of the locality in which the
place to be searched is situ ate. 5 2

But on the facts of a particular case the

Court may require that the recoveries must be proved by

63
examining the witnesses who had witnessed the recovery.
The provision contained in section 10(7) of the
Prevention of Pood Adulteration Act# 1954 is akin to the

lav; relating to search laid down in section 100(4) of

the Cr.P.C. 1973. The provision is enacted as a safeguard

against any possible allegations of excesses or reportto

unfair means by the Pood Inspector. This being the object

it is in the interest of the prosecuting authority to

comply with the provisions of the Act#the non-compliance

of which may in some cases result in the testimony of

64
the Pood Inspector being rejected,

(i) Search-imder. section 27 of .the..Indian_Evidence_ ,Act .,

The provisions of section 100 Cr.P.C. do not apply to

recoveries in consequence of a statement made by an

accused person in custody under section 27 of the Evidence

Act. The opening words of this section make it clear that

62 Him ache! Pradesh Adnrn v. QnJiLadSaafc A.I.P.1972 S.C.975

63 Nachettar Sindh v.S.tate of J&iniah A. I.R. 1976 S.C.951
64 Pood Inspector, v. 198 2 Cr.L.J. 676 at p.68 2 (Ker)
 341

its provisions are confined only to a search under

Chapter VII. The section refers only to search of places.

It does not apply to discoveries made from, the accused

persons in consequence of statsnents made under section

65
27 of the Evidence Act as held in v.Mukandi Lai.
- —.................. ~........... - ■- ............... —- ■ —...................... 66
But in P.albir Singh v. State of ,Hpryana, it has been held

that it was no longer a secret that the police had been

using section 27 of the Evidence %et indicriminately and

as such a very strong proof of the highest standard was

required to prove the recoveries and in case no independent

witness of the locality is joined by the investigating

officer at the time of recoveries from the house of the

accused it casts a shadow of doubt on the police version

hence the guilt against the accused is not established

so as a matter of caution provisions of section 100 Cr.P.C.

should be made applicable to recoveries under section

67
27 Evidence Act.

(ii) Search of the police party__

The persons of the search witnesses and of the

police party must be searched before they are allowed to

enter the house so that the person against whom search

is being taken may not have reasonable ground for

suspecting that someone among the search party had planted

something surreptitiously in his house.- The rule is that

65 1967 {69) Punj.L.R.935 “~ .
66. 1987 Chandigarh C.Cases 612 (P&H) <D.B.) (813)
See also 1984 C.C.Cases 255.
67 1980 C.L.R.68 ( P&H)
 342

everyone engaged in a raid must be searched to see that

68
there is no objectionable article upon him in the presence

of each other.

(iii) Er&aflacfi^oLJaga-Qr more jnden.end.erLt_.and

sgas^gjE. jfogJLoisalJLtoJte
witness the search

There is a vital difference between section 103(l)

of the 1898 Code and its corresponding provision, section

100(4), in the Code of 1973. While under the former," two

or more respectable inhabitants of the locality" were

to be called to attend and witness the search,now an

alternative is available. If two or more respectable

inhabitants of the locality are not available or not

willing to attend and witness the search,such witnesses

may be called from ’any other locality'• Therefore# the

entire case law under the old Code on the consequences

of not calling the witnesses of the locality has lost

its significance. The prosecution has to show that

witnesses of the locality were not available or were

unwilling. Once that fact is established,there is no

rule attached to the calling of witnesses from any

other locality. This provision should be strictly complied

with, so as to give full assurance to the court that the

69
recovery is in fact true. Provisions of this section are
68* “‘"'lltate-jalL .I.R.1969 S.C.53 ""

69 Sunra note Sf
 343
intended to orevent or check the clandestine use of the
70
powers conferred on the officers.

The provisions of the section are mandatory,

designed to guard against possible chicanery and unfair

dealings and must be strictly complied with. Every

departure does not,however, render the search illegal.

But unless an explanation is given of the omission to

secure respectable inhabitants of the locality as

witnesses#the Court will view the evidence with deep

71
suspicion. Where they are departed from, the burden lies

on the prosecution to explain the circumstances under

which it was not possible to comply with those

72
provisions.

<iv)

j£mn_,wher_e..

There are only three important stages in a search#

vi z, *

(1) that there must be some respectable persons

present at the spot to witness the search*

(2) that every process in the conduct of the search

must be witnessed by those witnesses? and

(3) that a list must be prepared which will bear

the signatures of those witnesses and of the things

seized in the search.

70 State v.$an£ JEXatesh 1976 Cr.L.J. 274

71 Bespari a v. State A.I.R. 1955 .Ajmer 10
72 In re K.Johnson A.I.R, 1957 Andhra Pradesh 8 29
 344

With regard to the first stage#no authority is needed

to show that the witnesses must be in attendance before

the search actually begins. With regard to the second

stage#both the letter and the spirit of the section#namely#

the provisions that the panches are to attend#witnesses

the search and that the search shall be made in their

presence#require that the panches should actually accompany

the persons making the search and should be actual

witnesses to the fact of the finding of the property. It is

not sufficient compliance with this section that the

panches be merely summoned and kept present outside a

building while the search is being carried on within it

and then called in to see what has been found. With regard

to the third stage#i.e,# the search-list#the presumption

of validity of a search arises from the search-list which

73
has been signed by witnesses. There is sufficient

compliance with the provisions of the section if the

search-witnesses are present before the search began

74
and witnessed the search. It was held in Sultan Khan v.
■•75
State that in course of a search when certain outsiders

enter in a room wherefrom certain offending articles were

alleged to have been recovered without having their

persons searched it would undoubtedly raise doubt about

7# v. %perac A.I.R*1934 Bom. l6 at p.20

7S 1969 Cal.W.N. 39
 345
criminality of accused for possession and accused would

be entitled to benefit of doubt,

(v) Involvement of respectable

caJUL-them. durjp.g,.
It is the duty of the prosecution to see that

the witnesses are respectable inhabitants of the locality.

But it is not an inflexible rule that in cases where

the search-witnesses do not satisfv the provisions of

76
this section,the whole proceedings should be quashed.

Assuming that the witnesses who actually witnessed the

search were not respectable inhabitants of the locality

that circumstance would not invalidate the search. It

would only affect the weight of the evidence in support

77
of the search and the recovery, /As observed bv Bas,u., in
78
I*scl3Bi-~Es£^ii2 v. fflapj-j&ar
It is with some object that the Legislature
has provided safeguards and when they are
deliberately broken it is,in our opinion,
not for the accused to show that they have
been prejudiced. The prejudice is,in our
opinion, on the face of the record. They
should not have entered the premises
without search witnesses,the object being that
it may not be in their power to smuggle articles
into the house and bolster up a false case
against them. 79

76. v. staie-of u.p. a.i.r.1956 s.c.4ii

at page 4l5.

77 ihML
78. A.I.R.1919 Pat.452

79. Ibid at p.453

 346
Respectability does not connote any particular

status or wealth or anything of that kind, Any person

is entitled to claim respectability provided he is not

disreputable in any way#that is#if he is not a thief

or a criminal of some kind or a person perhaps of

80
grossly immoral habits* The intention of the Legislature

is that those persons should be chosen as witnesses

who can be reasonably relied on to secure the desired

result and in whose trustworthiness and ability towards the

carrying out of the particular duty required of then

81
confidence may be felt* A person who has been convicted

of serious crimes like forgery or robbery cannot be

82
described as a respectable inhabitant of the locality.

It is objectionable to be constantly calling the same person

83
to witness searches. As far as possible the police should

avoid utilising persons who have already act©! as search

witnesses. The fact that a person frequently acts as a

search-witness leads to the inference that he is easily

available and amenable to the police. In other words# he

is a professional search witness. But the mere fact that

a person had previously acted as a search-witness is not

84 .
enough for discrediting him. Merely being a prosecution

witness in several cases is not sufficient to deprive one

80. Aghfacr v. Sfopernr A.I.R.1936 All.707

81. SmsZDL v.K£3Z£_H^m 7 Cr.L.J.47^
82. Ran Chander v. Shiperor A.I.R. 1935 All.520
*°/o.
83. Simon' K. Fernandez v. State A.I.R. 1951 Bern.468
84.r Ibid at PP.469,470
 347
85
of his title to respectability.

Section 100 Cr.P.C., clearly contgnplates the

presence of two respectable witnesses unconnected in any

way with the Government and its officers. So the calling

in of headman of wards who is appointed by the Commissioner

of Police and has certain duties to do or of the Village

Munsif and Kern am, is not sufficient compliance with the

provisions of this section, and the premises so searched

could nbt be deeded to have been duly entered and searched,

so as to aive room for the presumption that the place was a

86
common gaming house. Purpose of associating respectable

people is to avoid criticism of the conduct of the

87
searching officers at the stage of trial. The object of

conducting the search and seizure in the presence of

respectable inhabitants is to present planting of articles

by interested parties and prevention of fabrication of

88
false evidence.

The case law in regard to the calling of witnesses

of the locality has to be understood in the context

of the change that has been made,viz, witnesses of any

other locality also can be called if the witnesses of the

locality are not available or unwilling to attend the search.

85 Sunr.a note

86. Mi Tuck v. mo&ZQL 4 Cr.L.J. 390

87. State of Punjab v. Hakam Singh 1977 Cr.L.T.l48 (Punj)

88 • Kumar v. State .of. A.P.^1972 Mad.L.J. (Cri) 171
 3 48

The gist of this section is that there must be respectable

search-witnesses. The stress is on the word "respectable"

89
and not on the word "locality". Where the respectability

of the witnesses is not challenged,the failure or

inability of the police officer to secure search-witnesses fre

90
the locality is not more than an irregularity. If the

witness is an independent person not subject to the

influence of the police officer who took him, his evidence

would inspire confidence of the court and cannot be

91
discarded merely because he came from a distant village.

A witness who was not a permanent resident of the locality

92
where the search was carried on,but at the time of search

he was staying there temporarily as a guest with his

relative was competent witness, the fact that the relative

of the witness belonged to the oarty opposite to that of

93
the accused would not make him an interested witness.

Similarly,the mere fact that the witnesses are taken from

another locality should not be looked upon as a fact or

94 /
militating against their respectability. Under the Code

of 1898, one of the witnesses to attend the search had

been brought from a place four miles away. The challenge to

the conviction of the accused on the ground of non-compliance

State v. ■ Mukandi Lai 196? (.^9} Pm'HJ- L_- £,

oo
0\
«

SlEiiSE SiJQSh v.-State 1964(66) Punj .L.R.81

State vJRang Rao A.T.R.1952 Bom.327 at p.329
State v. Radha...Kishan_.(1961) l Cr.L.J.593J
o\

Ibid at p .600
•
a*

Raj ab athee, In re. A. I.R. 1959 Mad. 450 at p.45 2

 349
of the provision was negatived because it was only an

irregularity and it had not caused any prejudice to

95 - 96
the accused. In Sa£joan^giiiglL.v.State, of Punjab the
conviction was set aside because in the course of conductir

the search ( at the time of investigation) a person not

belonging to the locality had been taken as a witness to the

search and it had not been recorded that no independent

person of the locality was available. It is submitted

with respect that this decision is wrong and against the

principle well-settled. The accused was presented at the

police station along with the books seized#but there was

no seizure list. It was held that it was a defect in the

course of investigation and it had not caused any

miscarriage of justice and therefore# the trial of the

97
conviction could not be said to have been vitiated. But

it does not mean that the investigating officer can have twc

or three people accompanying him everywhere he goes for

98
searches.

When a search is organised a secret information

received,it will generally not be feasible to associate

persons of locality with the raid as there will be every

likelihood of the secret information leaking out and

ourpose of the raid being frustrated in most cases. It is a

95 Khalil, v. 1976 Cr.L.J.465

96 (1980) 8 2 Punj .L.R.631
97 Chander Shekhar a Pradhan v.££a£g 1976 Cut.L.R. (Cri) 12
98 Public p£as&2yLfc££ v. P.anier.£i Yen Saba A.I.R.1957AP 28*
 350

matter of common knowledge that there is a general

disinclination on the part of citizens to associate

99
than selves with police raids*

But except in such cases respectable persons can be

found in the neighbourhood and the police officer making

a search takes with him persons whose respectability is

questionable or who cane from a distance, it may not

be unjustified presume that he was prompted by a

desire to have such witnesses as would be easily persuaded

100
to support any story he might put forward.

The word "locality” does not mean the sane quarter

1
of the town as the place searched. The word is a

comprehensive one and may well include villages within

three or four miles of the village where the search is,

to be conducted. The police may experience difficulty in

2
finding respectable persons in the immediate vicinity. But

where respectable persons can be found in the neighbourhood

and the police officer making a search takes with him

persons whose respectability is questionable or who came

from a distant locality,the inference is that he was

prompted by a desire to have such witnesses as would be

easily persuaded to support any story which he might put

3
forward,........................................- ■...................

99. Ki-shan Lai v» Stats.. 1969 (7l) Punj «L.R. (D.S.) 299
100 State of Kerla v.Jesoph 1963(2) Cr.L.J.454
1., Ah-Seln v». Emperor 12 Cr.L.j.479
2. Bnneror v. Mas£JLaEQ#&.l.R. 1931 Oudh.115
3. JLaata. SjLngh . v. state 1970 (72) Punj.L.R.618
 351

Failure to call inhabitants of the locality as

witnesses is no more an irregularity. Even when the

failure to call witnesses of the locality was considered

to be an irregular! ty, the courts had held that it would

affect not the adnissibility of the evidence as to recovery*

but would only affect the weight of evidence and that it

4
was for the court of fact to consider the weight,

(vi)

Penal Code

When a person called upon by an JUbkari Inspector to

attend a search under this section refused to sign the

search-list and was thereupon charged under section

187,I.P.C., with intentionally omitting to assist public

servant in the execution of his duty, it was held that the

conviction was bad, as the assistance which person is

bound,by the earlier part of section 187,1.P.C.,to render is

eiusdem creneris with the various forms of assistance

referred to in the later part of the section,and that it

must have some direct personal relation to the execution

of the duty by the public officer. The signing of the list,

required by this section, is an independent duty which in

ordinary circumstances the party assisted could do for

5
himself. Sub section (8) only makes penal refusal without

4 state of Punjab v. Easaa_§ingh, (1981) 2 s.c.c.1

5 In the matter of Ramava Naika I.L.R.2^ Mad.419(F. ©)
 352

reasonable cause to attend and witness a search. It does

not compel the person witnessing the search to sign the

search list also. Signing the search-list is not part of

witnessing the search and a refusal to sign the search-list

6
is not,therefore# an offence under section 187,I.P.C.

The spirit of sub-section (6) is that the

'occupant* of the place searched shall be present which

means that he is to be given the option of being present

and not that he is to be allowed to be present only if he

demands it. But the right of presence given by this section

applies only to the ‘occupant* of the place searched or some

person on his behalf, and the words 'occupant of the

place* are not intended to cover every person who may

happen to be in the place at the time, but they refer

back to the person residing in or being in charge of the

place. Where* therefore, after the discovery of a gun and

search of theirpersons,the accused,who were the occupants

of the place,were sent out of the room and the search was

continued,it was held that there was a violation of the rule

enunciated in this section which was one not merely of

technicality,but of substance, in that it was enacted to

guarantee the reality of the search and that it was an

6
 353

irregularity which made it incumbent on the court to scrutini

7
the evidence carefully.

(viii) ■Q-f

■SfiiaSid .arti cl s,s

The list of all things seized in the course of

the search and of the places in which they are respectively

found shall be prepared by the police officer or other

persons making the search and shall be signed by the

witnesses. It is considered highly objectionable to make

the accused sign or put his thumb impression on the

8
search list as held in Naraln Rao v. State

Where the search memo was signed only by a police man

accompanying the Head constable and not by any independent

witnesses though they were present,the entire prosecution

9
story was held in JOiag&anJ&Lligh v. State of Ra-i as than as

unnatural and doubtful. Section 100 Cr.P.C. further makes it

obligatory that the copy of the list of things seized

in a search shall be delivered to the occupant or his

nominee in whose presence the search has been made.

Similarly, a copy of the list of things seized from a persor

on his personal search is required to be given to such a

person. This would ensure that the things seized are

properly accounted for.

7.
8 . Ibid. &.I.R.1957 S.C.737
9. 1975 S.C.C.(Cri) 737 at p.742.
 354

Cix) 3frtfcg -a.f-PrQsecuti.Qn to call search

MLta.as.aes

The court is,bound to summon the search-witnesses if

evidence of search is material* It is not usual to call

every search witness. But it is the duty of the prosecutior

to mention the names of search witnesses so that the court

mav summon them if it so desires and to produce the

10
witness for search at the trial. In jMalak Khan v. Ehroeror

the Privy Council held that there would be no necessity

to call either of the witnesses to the search having regarc

to the express terms of the section 103, "(now section

100 (4) of the 1973 Code) . Putting in search-lists, signed

by the search-witnesses as part of the evidence of the

police officer is worthless,except to corroborate the

evidence of the officer that witnesses were employed and

to show that the provisions of sub-section (l) and (2)

were complied with. If the evidence of the witnesses is

to be relied upon,they must be called and the accused

must have an opportunity of cross-examining then. The

last words in the sub-section(5) ( old 103(2) do not

11 12
negative this right. In Mohanlal v. Emperor Beaumont,C.J.

observed*

If the police hold a panchnana, and do not offer

to call the panch, an inference may be drawn against
than from the fact that the panch is not
submitted for cross-examination. The putting in
of a panchnsma without calling the.panch is not
only an infringement of the rules of evidence
against the admission of hearsay evidence
101 ' ATlTR. 1946 P.c.16 ’ —— —
11. Rustam Cur setj i Lam v. Shiperor A. I. R. 193 2 Bom. 181

12. Mohan Jal v. A.I.R.1941 Bom. 149

 355

but it is unfair to the accused,because it enables

the police to get the advantage of evidence in
corroboration without putting that evidence
to the test of cross-examination Such cross-
examination might show that the panch was
nothing but a police agent, and that his evidence is
worthless.

In Ran Pass v. State of U.P. under the

Prevention of Food Adulteration Act,where the witnesses

relating to the taking of the samples were not examined,

13
it was observed by S.B.Singh J '

but if the evidence establishes that

the sample was taken from the shop of a
particular dealer,then even though no
witness has been called,, there is no reason
why his (Sanitary Inspector's) solitary
statement may not be believed. The prosecution
is entitled to urge that the truth of the
allegations which are being made against an accused
person may be judged on the basis of the evidence
which is examined in the case and if that
evidence is satisfactory and there is no reason
whatsoever to doubt the truth thereof, then the
prosecution can very well urge that even though
certain witnesses may not have been examined,the
Court should record a finding of guilty against
the accused,

(x) Evidence of Police-Officers and

stock witnesses

To utilise the same person as panch witnesses,

results in a presumption that witnesses are stock witnesses

under the thumb of the police. It was held in Ved Parkash v,

14
State that "conviction should not be based on the evidence
of a person who is proved to be stock witnesses of the

police and has been going about giving evidence in various

police cases from different localities and who does not

13. Ram P-aS-S v, State A, I. R, 1969 All, 109

14. Ved Parkash v. State (1966) 6s Punj.L.R.3l6 (B.S.)
 356

appear to have scruples to speak the truth in the

witness box". It depends upon the facts and circumstances

of each case. There are persons who join in order to help the

police and trace real offender. It will be injustice to dub

then as stock witnesses. Lambardars and chowkidars are not

..................................... 15
stock witnesses as held in Dwarka Pass v. State. In
• . -..16
Bnperor v. Bipu it has been held that mukhiars and

sarpanches are respectable persons and they are appointed/

elected to these offices because of their respectability. The

law nowhere says that the testimony of the police or excise

officers necessarily be discarded unless it is corroborated

by independent witnesses. Chagla C.J. has laid down the

principles for believing police evidence in Shanker Mann v.

17
Bnperor? "where the law makes it obligatory for a search to

take place in the presence of panches and the only evidence

on which the prosecution asks for conviction of the accused

is police evidence#the court will not ordinarilv act on that

18
evidence* The presumption that a person acts honestly

applies as much in favour of police officer as of other

persons and it is not a judicial approach to distrust and

suspect him without good grounds. Therefore# such an attitude

could do neither the credit to the magistracy#nor good to the

15 Dwarka Pass v. State (1965) 67 Punj.L.R.260

16 Bnperor v. Pi mi A.I.R. 1935 All.850
W See also 1984 Chandigarh C.C.89 P.H(H.C) and 1984 C.C.Ca:
159 P.H.(H.C.
17 Shankar Manu v.Hnperor A.I.R.1950 Bom. 2^7
is ~~
 357

public. It can onlv run down the prestige of the magistracy

----- • " ............. 19. .
as held in iMieF Raja ISfaima v. State. Supreme Court in
20
lathll Singh v. State held that mere fact that prosecution

witnesses are police officers is not enough to discard their

evidence, in the absence of evidence of their hostility to

2i
the accused. In |>£sn liafcta Gautam v. State# Supreme Court

believed the testimony of a police constable in a murder

case when there was no possibility of his developing enmity

with the accused. In an appeal against the acquittal# Pun j ab

22
and Haryana High Court has held in State v.Ram Par hash that

non-jining of independent witnesses would be a suspicious

circumstance which would require the court to scrutinise

evidence with more caution and care but in no case by itself

it can warrant the discredit of the prosecution case.

However, official witnesses alone cannot foe believed,

if no independent witness has been joined.

(a) inspite of the fact that there is ample

opportunity to join them especially while conducting

23
excise raids as held in B.aj Singh v. St at e - o f Pu n j ab.

19 Mer. Rp-ia Khimn v. State A.I.R.1956 S.C.217

20. Mat3m Singh v.. State 1974 cr.L.j. n

21 Prsn Estt£ Saataoi V. State 1973 Cr.L.J. 1767

22 State v. Ran Parkash 1978 Cr.L.j. 601

23. MaA Singh v. StaL&ja£ ..Punjab Chandigarh L.R.i23<Punj ab)

 358

(b) Wot taking any witness while going on patrolling

duty as crime detection is the main purpose of

patrolling party of the Ilaqa police and they could

expect that some crime may be detected as held in

—.................. • 24
Ha£± Singh v. .S-tatfi?
(c) When a police officer takes a stock witness
25
intentionally with him as held in Piara .Sindh v. State?

(d) When in absence of non-official evidence#evidence

of officials is .discrepant#inconsistent and not

reliable and snacks of hostility as held in State v*

26
Hak?m Sir,oh?

Ce) When independent witness resiles and evidence of

official witnesses is discrepant and a stock-witness

27
is joined, as held in J&fl&mJSLnoh v. HfcjShe?

(f) When huge quantity is recovered# the evidence

of official witnesses is to be relied upon especially

when there is no earlier enmity between the accused

28
and official witnesses as held in Inderjit v« .State?

(g) When independent evidence was admittedly

available but still not joined#official evidence alone

29
rejected in Facrir Chand v,

24. Harl Sindh v. State 1974 Chandigarh L.R.48 2 (Punjab)

25. Piara Sindh v. fiLafca 1968 P.L.R.156

26. . State v. Hakam .Singh 1977 (79) Punj L.R.319

See also 1977 Chandigarh L.R.44(Punj ab) and 1976
Chandigarh Law Reporter 28 2 Punjab.
27. Kundan"Singh v. State 1978 Chandigarh L.R.50 (Punjab)
Inderjit v. State (1978) 80 Punj .L.R.341
Fadir Chand v. State of Punjab 1978 Chandigarh Law
Reporter (Pb.& Har) 163
 359

The net result is that where police officers suddenly

come across a working still or they may come across a

person in whose possession there are incriminating

articles and they may have to seize the still or the

incriminating articles from the person of the accused.

In cases like these it would be open to. the trial court to

accept the police evidence and convict the accused if the

court is satisfied that the evidence is of a satisfactory

character and the guilt of the accused is proved.

There is again another class of cases where there is

prior information/secret information with the police and

there is sufficient time for independent witnesses to be

called and an arrest/search to be made in their presence.

In these cases the police should associate independent

respectable inhabitants of the locality as witnesses to

avoid further criticism at the statfe of the trial and also

to prove the recovery of incriminating articles beyond

30
reasonable doubt*

(xii) The effect of irregular searches

Irregularity in a search and the failure to

obtain a warrant would always afford a ground for scrutiny,

but if after close scrutiny,the court comes to the

conclusion that the articles were recovered from the

31
possession of the accused, the conviction would be sound,

30 state of Punjab v. HatajpuSipgh 1977 (79) Punj.L.R.

319 at p.320

31 Nazir Khan v. State 1958 Cr.L.J.120

 360

Where,however, it is not possible to make a search

in the presence of the panches or where property is found

without a search being made for example,where a person is

seen carrying a bottle of liquor in his hands, or where

under the law it is not obligatory to make a p anchn am a, i t

would be open to the court to convict the accused on the

evidence of police officers alone, if after examining that

evidence carefully the court feels satisfied that it is

32
true. Where there is no evidence to prove that more

respectable witnesses or equally respectable witnesses were

not available in the locality or that the local witnesses

were unwilling to come forward as search witnesses, a

search in which both the witnesses were from a different

locality and both were not very respectable it was held that
33
the search was illegal. Each case must be decided upon its owi

facts and circumstances and if there is the slightest

apprehension that the accused might have been the victim

of a piece of chicanery or sharp practice on the part of

any member of the raiding party, a Court of Justice must

give him the full benefit of it and set aside his

34
conviction.
35
in R adii a Kish an v. .Q.f U.P« it was held that

when in conducting a search,the procedure laid down in

section 100 Cr.P.C. is not strictly followed,the evidence

amaeror v. Kjg.an laxaxan &.I.R.1951 Bom. 186 at p. 187

co co coco
n m

Btshnsth Rai v. Ess A. I.R. 1950 All. 147

Pan 1-at- R.am_v. EtUgS^gX A.I.R. 1933 Lah.809
tu n

R adh a Rish.an v. State of U.P. A. I .R. 1963 S.C.822

 361

discovered by the search does not thereby become inadmissible

nor is the conviction based upon such evidence illegal. The

mere illegality of the search will not make inadmissible

any evidence otherwise admissible. It may only be reasonable

to view with more than ordinary caution the evidence of

those persons who made the illegal search. In this case the

Suprene Court has further observed* u3ven assuming that the

36
search was illegal# the seizure of the articles is not vitiate*

■& mere irregularity in conducting the search by reason of

non-compliance with the provisions of lav/ does not vitiate

37
the trial# or make the evidence inadmissible#unless it is

shown that the irregularity caused a miscarriage of justice

38
or prejudiced the accused. If the evidence is relevant# it is

admissible# and the court is not concerned with how it is

39
obtained. “It matters not how you get it, if you steal it
40
even#it should foe admissible**. An irregularity in the search

or seizure may affect the weight of the evidence. That has

to be judged on a careful scrutiny of all the materials the

court has before it#but the admissibilitv of the evidence

41
remains unaffected."

It may be that where the provisions of sections 100

( old section 103) and 165 of the Cr.P.C. are contravened#the

search may be resisted by the person concerned# or the court

may inclined to examine carefully the evidence regarding the

•seizure. But beyond these two consequences no further

36 Ifoid ..................
37 Shy am L.al v. State ,.OJL.fikg*.197 2 Crx.L.J ,o38
38 Bai Radha v. State of Gujrat &.I.R. 1970 S.C.1396
39 Kuruma v. Begin an (1955) 1 All. S.R.236 at p. 239
40 Per Crompton J.in R.V.Leatham, (l86i) 8 Cox C.C.498
4l. State of W.B.v.Sardar Bahadur Singh A.I.R.1969 Cal.451
 42 362
consequence ensues.

But where the provisions are contravened without

proper justification,there is the possibility of the search

and the recovery being viewed with suspicion and courts may

refuse to act upon the solitary evidence of the investigating

' 43
officer,

What is really intended by section 100 Cr.P.C. is

that it should be strictly followed to the extent it is

possible to ensure that the incriminating articles were

recovered as alleged and it leaves no room for doubt. The

reason is that it forms a material part of the evidence which

is necessary in matters of conviction for alleged oossession

44
of incriminating articles. Conviction or acquittal depends

upon the credibility of the witnesses as assessed by the

court and not on the question whether their presence on the

scene of the alleged offence was in accordance with a

45
particular legal procedure. Although the failure to comply

with the provisions regulating searches may cast doubts upon

42 Ra3ha_KLshan v- State of U.P.A. I.R-1963 S.C.8 22

43 iLJLJ&itraa P.aniclcec v. 3tata^a£JSeijLa (1963) l cr.L.j.669

44. hal .Bahadur v. State A,I.R. 1957 Assam 74 at p.75

45 . Bfnamali- .Bhat1iach.arl.ee v. BsSjgSQL A.I.R.i960 Cal.85

 363
the bona fideg of the officer conducting the search,there

is nothing in law which makes the evidence relating to an

irregular search inadmissible and a conviction based on

46
such evidence is not invalid on that ground alone. If such

testimony is found by the court to be entirely reliable

there cannot be any legal impediment to the conviction

47
of the accused. Witnesses not going inside the house of

accused but standing outside,would make the search irregular

48
but would, not affect legality of prosecution.

(xii)

Section 100 Cr.P.C. in terms applies only to

searches made under the Code of Criminal Procedure. The

provisions of this section do not apply to searches under the

49 50
Bombay Prevention of Gambling Act,the Public Gambling Act, 1867
51
or the U.P.Gambling Act, I867. For the applicability to
52
Essential Commodities Act 1955,we turn to a decided case.

The provisions of this section would not be applicable,

nor could they be intended to be applicable to surprise

raids,the object whereof would be frustrated if on reaching

the place attempt is made to procure respectable persons of

53
the locality to be witnesses to the search.
vd

Safi Nand v. State of Rajasthan 1977 Cr.L.R(Raj) 239 at

p. 244
JSstchan Vglag U£han v. State A.1.R.1961 Ker 9
t " c p 0 'O * ' 1{ ''3 *n
•

Bndha M.ajbl v. State I.L.R.I962 Cut. 366

•

■State v- .Radh-a Kish an (l96l) 1 Cri.L.J. 595

•

Mahadect Parsad v. .frapQSQC A.I.R. 1934 Oudh 90 .

Rais Raa v. Snas£Q£ a.i.r.19 29 ah.936
I.L.R. (1980) 2 ©elhi 1198
Pritam Sindh v. State (1964) 66 Punj.L.R.81
 364

The police party raided the house of the accused at

about 3 a*m. when the accused was distilling illicit liquor

inthe courtyard of the house and was actually feeding

the fire under the still* In a case such as this# if

timely warning is given to the alleged culprits of the

imepdning raid by calling respectable inhabitants from

the locality to witness the raid#the whole object of the

54
sudden raid would be completely frustrated*

But if the rules under the provision under which

search is car riel out provide that the search of the

constables and the search-witnesses, should be carried out

before entering the house#the rule ought never to be

neglected# specially In view of the fact that an informer

under the Excise Act obtains a substantial rex-rard for

information leading to a conviction and there is a great

temptation for him acting in conjunction with the nolice

55
constables# to plant excisable articles in the house.

Even if the provisions of the Code are made applicable

to a search under any other Act# such as# under section

132( 13) of the Income Tax Act# 1961# all what is intended

is that the officer concerned shall issue the necessary

warrant#keep present respectable persons of the locality

to witness the search and generally carry out the search

in the manner provided by'the Code* But this does not imply

that the limitations prescribed by section 1&5 of the Code

56
are also incorporated therein,
54 ~ ~~
55- Mohmud Ali Khan v. Qnperor A.I.R. 1933 All.438
S6 J*T*'0~^rsi^Bros* Atr^7l970 s\i c. 292 at p.297
 365

Under Section 54 of the Mysore Excise Act# 1966, an

Excise Officer without recording the grounds of his belief

before proceeding to search a car#which he should have done,

searched and recovered bottles of liquor. The accused was

convicted at the trial. The Supreme Court set aside the

conviction because section 54 had been violated. It observed*

"This# therefore# renders the entire search without

jurisdiction and as a logical corollarv vitiates the

57
conviction. It is submitted with respect,that this

reasoning is contrary to the well-accepted principle that

illegalitv in search will not vitiate the trial or

58
conviction unless prejudice to the accused is established.

The evidence of customs officer alone, to prove the

recoveries,!s enough and conviction can be based on that

59
evidence. There is no rule of law that conviction cannot
60
be based on the sole testimony of a Food Inspector.
2. SEIZURE OF PROPERTY

Where a search warrant is issued for the search of

any particular thing#the police officer or the other person

making the search has been empowered to seize such things

if recovered during such search. Similarly where a police

officer during the investigation of any offence searches any

place for any particular thing#he has the power to seize such

57 v. j&ake A. I.R.1979 s.c.711

58 Radha-JH-Shan v. .State of U.P. A.I.R.1963 S.C.822
#§qi See also State v.Natwar Lai Damoder Da.ss Soni AIR 1980 SC
593
59 miate V. A.I.K.1980 S.C.1224
60 Praa BaHala v. State A.I.R. 1.977 S.C.56
 366

things if recovered in the search. However, the police

officer making any search has far wider powers to seize

any incriminating things other than those specified things

for which the search is made. Such powers are necessary

for the effective discharge of police functions and has been

provided in section 102 of the Code of Criminal Procedure

which is as follows*

certain property (l) Any police officer

may seize any property which may be alleged or
suspected to have been stolen, or which may be
found under circumstances which create suspicion
of the commission of any offence.
(2) Such police officer, if subordinate to the
officer incharge of a police station, shall forthwith
report the seizure to that officer.

(3) Every police officer acting under

sub-section (1) shall forthwith report the seizure
to the magistrate having jurisdiction and where
the property seized is such that it cannot be
conveniently transported to the Court,he may give
custody thereof to any person on his executing a
bond undertaking to produce the property before
the court as and when required and to give effect
to the further orders of the Court as to the
disposal of the same.

(a) ELsaming ..Q.L.p.r.QPjaE.fcy

In legal usage,' property' is perhaps the most

comprehensive word which can be employed and it may

signify either the subject-matter in which rights or

interests exist, or it may signify valuable rights and

interests protected by law or it may signify both. The

term may have different meanings depending on the

context in which it is used and in the manner its user

61
is contemplated*
6j„ Gurch^r-sm "sincrh v. State"~of "^eni ab 1978~(8~0~) PunT. ■*-<»**»
 367

Where the offence committed is of criminal misconduct

as defined in section 5 (l) (e) of the Prevention of

Corruption Act, 1947,the bank account would be property

capable of being seized under section 10 2 of the Criminal

62
Procedure Code.

(b) Power ■ Of -police to seize property

Section 10 2 Cr.P.C, gives the police very wide powers

to seize property which is alleged or suspected to have been

stolen or which may be found under circumstances which

63
create a suspicion of the commission of any offence. The

Police Sub Inspector acted rightly in seizing and detaining

the lorry in view of the fact that neither the plaintiff nor

the driver tried to satisfy police Sub Inspector Shimpi

that the driver had a licence under section 9.3 of Motor

Vehicle Act, 1939 or the requirements of the provisions of

sections 22 and 42 of the said Act were fulfilled by the

documents,if any,which were in possession of the driver or

the plaintiff* In the circumstances,the police Sub Inspector

was justified by the powers given to him under section 129-A

of the said Act in seizing and detaining the lorry in the

64
circumstances mentioned in section 550 ( new Section 102) •

The Police Officer has no power to seize the property when

he is not making anv investigation but was only directed to

65 '
enquire and report. The section speaks of *any offence* and

62 Ibid at p.517
63 Kasturi Lai Kali-.sUft.Sm v.S£ :. A.I.R.1965 S.C.
1039
64 Kan la Bai v. State of Maharashtra. (1978)80 Bcm.L,R#33?
65 R.K-KUlagann Si nnh v, v.H.I.Sinch 1963 (2) Cr.L.J. 100
 368

so is wide enough to cover offence created by the Defence

of India Rules. Rule 124 of these rules has not abrogated

66
this right. The words "any offence" in this section show

unmistakably that even though there may be the commission

of a non-cognizable offence# a police officer may seize any

6?
property found under suspicious circumstances*

The word "seize* in this section can only mean the

act of. taking actual physical possession of the property

capable of being so seized. The section does not appear to

contemplate a police officer prohibiting the payment of a

debt by a debtor to the accused person. As long as the

money is in the possession of the thief and capable of

seizure#it may.be open to the police officer to seize it on

the ground that it was# or was suspected to be# stolen

property#but once it passes into the hands of the debtor and

the money becomes unidentifiable#there can be no question

68
of its being seized by the police officer. An order passed

by a police officer directing a bank not to allow accused

to withdraw money or property from his account and locker

with the bank#cannot be passed under this section and

69
must be quashed.

Where at the moment when the seizure was made there

was no investigation pending there was no charge pending#

there was no information of the commission of cognizable

66 Bgbu Lai Aggarwala v. Province of.. Orissa &.I.R.1954

Orissa 225.
67 ikulp.230- ----- ------
6s Text.i le Traders. Svndicate....Ltd.V«.itat.erjoi..iL_E. A.I.R.1960
All 405 at pp.407,408
69 M/s. Purbanchal R,o..fiemhati v. Stsfca pf.&s-aam
1991 Cr.L.J.2798 XGau.H.C.)
 369

offence proved to have been pending before the nolice

70
officer concerned, it was held that the seizure was illegal.

Section 102 of the Code relates to seizure of any property

which may be alleged or suspected to have been stolen or

which may be found under circumstances which create suspicion

of the commission of any offence. Thus where the seized

paddy was neither alleged or suspected to have been stolen,

nor had been w found under circumstances which create

suspicion of the commission of the offence”,the provisions

of Section 550 of the old Code ( new Section 10 2) in terms

do not apply to the seized paddy and so the police could

71
not have seized the sane on the basis of that section.
(c) Seizure of goods under Cu stoias-Law—

Police officers can seize property under this section

only in cases where they can investigate into the offences

under the Code or-under any other law. Offences under the

Customs law are not investigated by the Police officers.

Customs officers should not, therefore, make use of

a police officer to seize articles under this section

72
on suspicion or commission of an offence under such law.

70 Shashi Bhusan Malty v. State &.I.P. 1957 Cal. 148 at p.150

71 R.K.Banansana Singh v.R.K.Nan'it_Sana-Sindbu.A.I.R. 1971

Manipur 39 at p.4f.

72 Nemichand Jain v. .and.Land

Customs A.I.R. 1963 Manipur 35.
 370

Customs officer is entitled to seize articles or goods

not on the strength of search-warrants obtained from the

magistrate but they have been given power to seize the

articles or goods under the Qistems Act, 196 2. In the instant

73
case the truck was seized by the Customs Officer,which

has been alleged to have been used for transporting or

carrying the rnuggled goods® As such a seizure was made in

exercise of the power vested under that Act in the Customs

authorities and the vehicle was in custody of that authority

when application was given by the petitioner to the Judicial

Magistrate First Class. The Judicial Magistrate had no

authority or power to pass the order to return the vehicle

on condition of giving security and undertaking to produce tha

74
vehicle in court whenever so ordered.

(d) Seizure of goods, under essential

In M...Feeru_J£anm v. St_ate o.f_,JSer.aXa it has been held

that in all cases of seizure of vehicles*vessels and other

conveyances for carriage of commodities in contravention of

any law governing the matter,the proceedings for

confiscation should be conducted and completed and orders

passed within two months of the seizure. Simply because the

particular enactment does not insist on any time limit,it

73 v. Sal ,charxi
bakhmart Singh-Oiah-A.I.R, 1970 Guj.2 23 at p.234
74 IMH
75 1983 Cr.L.J.410 (Ker)
 371

does not mean that the authority concerned can take its own

time* If there is a stay from a competent court it goes

without saying that the period of stay can be excluded.

If according to the authority who is to conduct the inquiry

the pendency of a case before any court stands in the way

of the inquiry the authority should move that court and get
76
cl arl fi c ati on,

(e) SejflPEe ?fetor Vehicle, feet? 19S8

In the case of seizure under the Motor Vehicle Act

there is not provision for preparing a list. In the very

nature of things where the property is seised and not recovered

during a search it is not possible to comply with the

provisions of sub sections (4) and (5) of section 100 of the

Criminal Procedure Code. In the case of seizure under the

Motor Vehicle Act,there is no provision for preparing a list

of things seized in the course of the seizure for the

obvious reason that all those things are seized not

separately but as part of the vehicle itself. But It is in

the interest of the very officer or person seizing the

vehicle so that he may not be open to any charge being laid

against him later that such officer or person takes care

to prepare a list of detachable things which are ordinarily

not part of 'the vehicle and given a copy of the list to the

person incharge of the vehicle at the time of seizure as

77
held in ££aB^Pfl,£i^Cggimls.siPn.s,r.,.A« p». v. iLSaEcLaE,..frll.

76 Ibid at p.412

77 A.I.R.1983 S.C,1225
 372

(f) Seizure List:

On seizing property under section l0 2.Cr.P.C. the

police officers must prepare a list of the articles seized.

He cannot detain any property without includina the sane

78
in the seizure list. The seizure of paddy.bulls and bullock-

carts is illegal as no copy of the mahazar was given and

as the mandatory provisions contained in section 102 and

103 of the Code of Criminal Procedure.have not been complied

79
with at the time of seizure. Sessions Judge ought to have

followed the ruling of the High' Court which is binding on

him and should have held that the seizure was illegal. It

is binding on the subordinate Courts to follow the rulings

of the High Court unless they are clearly distinguishable

on facts or on law. Failure to do so will amount to

80
dereliction of duty,

(g) iLL&g&It.y, in .aeimsje

It cannot be laid down as a universal preposition

of law that any irregularity in not following the procedure

under sections 102 and 103 of the Code vitiates the entire
81
proceedings.

To take an obvious example.the possession of an

unlicensed gun or a stolen property, is by itself an offence.

78 Suor a note US:

79 £LX#JaSBH^§33lvi-V. .ft.*I.R. 1975 Mad.39!
80 Sesur aj .Re. 1980 Mad.L.J. (Cri) 104

81 Krishna Moorty In re 1980 Mad.L.J. (Cri) 371

 373

If the search and the seizure is not in accordance with

1 aw,it mav be open to the person accused to complain that

the seizure was never made# or that the evidence as to

seizure cannot be accepted,but once it is made out that

the weapon or the stolen property was seized from the

accused,the mere fact that the search and seizure were

82
not in accordance with law would not vitiate the seizure*

There is neither a statutory requirement nor

precedential mandate for handing over the seal used by the

police officer in the course of an investigation to a third

person forthwith* It necessarily follows therefrom that even

where it has been so done# the non-production of -such a

witness cannot by itself af'ect the merits of the trial*

Criminal trials ordinarily turn and must continue to do so

on the credibility and acceptability of the evidence on

record* It cannot be said that a criminal trial would

succeed or fail merely on the technicality of the delivery

of an investigation seal to a third person or the

latter* s.refusal or inability to appear as a witness

83
about the same.

Mhere the shirt was seized from the accused, and was

produced before the magistrate after six days of the seizure.

82 v#.Kanda.smy~
83 gjjEaJSingk. v. 198 2 cr*L*j.ii?6 at
at p©l 18d (i\j s/i Am U v-j? Q; {| v-> truy, ft-vi Hu-3
 374
The prosecution has given no explanation for the delay.

Such delay is contrary to the directions contained in

section 10 2(3) of the Code of Criminal Procedure. The

attestors of mahazar of recovery signed the same after

two days. One attesting witness also stated that he did not

notice whether there was anything (bloodstains) on the

shirt* In the face of such irregularities the recovery of

84
shirt cannot be made use of against the accused*
3. SEARCH BY A MAG ISTR&TE

&ny magistrate may direct a search to be

made in his presence of any place for the search of

which he is competent to issue a search warrant* Under the

provisions of section 103 of the Code of Criminal

Procedure, 1973 the magistrate may instead of issuing a

35
search war rant, direct a search to be made in his presence*

The practice of magistrates than selves making searches

becoming witnesses for corruption trap cases,has,however,

been deprecated.
.................... - 86
....................................................................... ..... --- ■

in .Shiv Bahadur_.Sin.gh v. State the Supreme Court

approving the views of the Calcutta High Court in

M.C.Mittra v. State with regard to the traps by the police lai

down that there is no justification for the police

authorities to> bring about the taking of bribe by

supplying the bribe money to the giver,the duty of the

police being to prevent crimes and not to provide the

instruments of' the offence? and further that the magistrate

should not be employed by the police authorities to bear

84 Kadnngoth- Mlavi V. Sta.t-S.af 198 2 Cr.L.J.94

at p.-lOO (Ker)
85 Clarke v. Broiendra Kishore Roy Chowdhury,I.L.R.36 Cal.
■535^“ *•—“—■—■— -------------------------—----------------------- —■“*
86 A*I,ll. 1954 S.C.322
 375
witness, to the giving of the bribe as this practice

undermines the independence of the judiciary and lowers

its prestige in the eyes of the public.

4. CONCLUSION WITH COMP^RATIVB PERSPECTIVE

Search warrant is generally required for conducting

search in India as well as in United States of liymerica

and Britain* The search warrant is to be issued upon

showing of a probable cause by an impartial magistrate

not connected with the police or law enforcement agency.

The magistrate has to apply his mind to the facts stated

before him and on being satisfied about the credibility

and reliability of the information shall exercise his

judicial discretion in issuing or refusing to issue

search warrant applied for.

There are certain exception to the general rule of

the requirement of a search warrant before conducting a

search in Britain,United States of America and India. The

Jr ^
right of the police to sear coincidental to an arrest

has been recognised by the Supreme Court of United States

88
of .America and in India statutory under the provisions of

sectionsSl and 5 2 of the Code of Criminal Procedure.

Similarly#procurement of warrant may be dispensed with in

exigent circumstances where it is impracticable for the

89
police first to obtain a warrant from the magistrate .

88. Chimel v. CaldfornLa 395 U.S.752(1969) .

See also supra Ch.II for British Position.
89 V.MEste 412 U.S. 29 (1973)
 37G

The exigency may be that the evidence may be removed away

or the purpose of the search shall stand frustrated if

immediate search is not conducted. In United States of

America the examples of such emergent circumstances, are

the vehicle searches# administrative searches and sfcdp and

90
frisk cases,-' In' India whenever an officer incharge of a

police station or a police officer making an investigation

has reasonable grounds to believe that something necessary

for the investigation of an offence may be found in a

Particular place and that such thing cannot be otherwise

obtained without undue del ay, he may conduct the search on

his own authority under section 1®5 Cr.P.C,

The important difference in the procedure of

conducting search with a warrant or without a warrant is

that an Indian Police Officer must select two or more

respectable citizens of the locality or its vicinity as

91
panch witnesses to accompany him during the search

operations so as to inspire confidence in the police conduct

and also to safeguard the rights of the accused during the

>e
search and later for authenticating its property.

90 -v/lMtea-States-267 u.s.13 2 (19 25)

Terry v. Ohio 39 2 U.S.l (1963) and
m Camara v. Municipal Court 387 U.S. 5 23 < 196?)

91 Section 100(4) Code of Criminal Procedure 1973

 377

The use of these impartial panch witnesses is an

economical method for a country of limited financial

resources to•prevent police chicanery, to verify the

discovery of evidence in the searched pranises and to

inspire public confidence and the involvement of the

public in the active a&ninistration of criminal justice*

These panch witnesses should be impartial men of integrity

and good moral character and not professional panch

witnesses in any way connected with the police as

stock witnesses as discussed elaborately above*

Such a system of panch witnesses is not prevalent in

Engl and and United States of .America where the police

force is held in high esteem and inspires confidence

of the public and the courts unlike their counterparts

in India where there is a chronic distrust and lack of

confidence towards police forces.